Macquarie Journal of International and Comparative Environmental Law
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Macquarie Journal of International and Comparative Environmental Law |
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MEINHARD DOELLE[*]
Climate change has been described as the greatest environmental challenge and one of the greatest challenges facing human kind. This is in part due to the complexity of the science, and because the causes of human induced climate change are at the core of western societies and economies, the ever increasing consumption of energy and other resources used to support our way of life.[1] Most importantly, however, it is such an overwhelming challenge because the consequence of failure is predicted to be so enormous.
According to the Intergovernmental Panel of Climate Change (IPCC),[2] unabated climate change is likely to cause some small island states to disappear as a result of sea level rise. Flooding in parts of the world is expected to displace millions of people. Other regions of the earth, particularly Polar Regions, are predicted to lose whole ecosystems, and in the process, threaten the future of communities that depend upon them for food, shelter and culture. Changes in precipitation patterns, wind currents, ocean currents, temperature, and increases in extreme weather events are expected to displace millions of people around the globe, and create new challenges for meeting the basic needs of many more.
In spite of these predictions and the surprising level of consensus that has developed on them over time,[3] action at international and national levels has been slow to date. From the time international negotiations started in the late 1980s, global emissions have continued to increase significantly. More specifically, emissions in developed countries with the highest per capita emissions have continued to rise, often more dramatically than those in developing countries with lower emissions to start with.[4] Three countries stand at the top of the list; Canada, the United States, and Australia. Per capita emissions in these counties are almost double the average per capita emissions in other developed countries, and 10 to 30 times the emissions of many developing countries. What is worse, emissions in these countries have increased a further 10 to 15% since 1990. Of the three, only Canada has ratified the Kyoto Protocol,[5] a very tentative step toward addressing the challenge of climate change. The other two countries, the United States and Australia, have refused to ratify the protocol citing economic hardship and a concern that developing countries are not obligated to make reductions in the first commitment period of 2008 to 2012 under the Kyoto Protocol.
Underlying the position that economic hardship and the refusal of developing countries to commit to action justifies not participating in this international effort to address climate change is an assumption that the governments of the United States and Australia have an obligation to protect the economic well being of the current generation of their citizens ahead of any obligation to prevent climate change for the benefit of current and future generations of their own citizens.[6] Implicit in the response of these countries to climate change is furthermore an assumption that there are no obligations beyond the borders of these countries with respect to climate change that override obligations to maximise short-term economic prosperity for their own citizens.
This paper seeks to test these assumptions in one specific area, the area of international human rights. Given that two of the three countries with the highest per capita green house gas (GHG) emissions are in North America, this article will focus on the Inter-American Human Rights Regime (IAHR) as the regime within which this issue is most likely to be raised.
First, however, some general context for this analysis is warranted in two areas: the science of climate change and international human rights. To this end, the impacts of climate change as predicted by the IPCC in its third assessment report will first be briefly summarised for two areas of the globe that are, and will continue to feel, the impacts of climate change first and most dramatically: Polar Regions and Small Island States. This is followed with a brief introduction to the concept of human rights in international law. Given the tremendous influence of the Universal Declaration on Human Rights on the evolution of regional human rights regimes such as the IAHR regime, and given the ongoing influence of the United Nations on the substantive development of international human rights, a brief reference to the UN Human Rights Regime is also included.[7]
According to the IPCC 2001 Synthesis Report, Polar Regions have experienced up to five degrees Celsius increases in temperature as well as significant changes in precipitation in the past century. Sea ice has been decreasing by 2.9% per decade. In addition, permafrost areas have been significantly affected. The IPCC concludes that ‘the Arctic is extremely vulnerable to climate change, and major physical, ecological, and economic impacts are expected to appear rapidly’.[8] The Report further predicts ‘severe disruption for communities of people who lead traditional lifestyles’, and ‘severe damage to buildings and transportation infrastructure’. Finally, the Report concludes that:
for indigenous communities who lead traditional lifestyles, opportunities for adaptation to climate change are limited. Changes in sea ice, seasonality of snow, habitat, and diversity of food species will affect hunting and gathering practices and could threaten longstanding traditions and ways of life.[9]
Small island states can be found in the Pacific, Atlantic, and Indian Ocean regions, in addition to areas within the Caribbean and Mediterranean Seas. These islands are particularly vulnerable to climate change due to their small size, low elevation, limited resources, isolation, small economies, high population densities, and limited capacity to deal with natural disasters such as severe weather events and sea level rise.[10] Islands in these regions are already experiencing a number of changes that cause significant challenges to their inhabitants. They include changes to rainfall regimes, soil moisture budgets, prevailing winds, changes in local and regional sea level, and patterns of wave action.[11] These challenges are expected to increase as temperature and sea level changes in affected areas continue to accelerate. It is clear from the IPCC Third Assessment Report that small island states will face significant loss of landmass as a result of a combination of sea level rise, storm surges, and the lack of capacity to adapt.[12] Other impacts identified in the IPCC report include impacts on biodiversity, water resources, tourism, food security, settlement infrastructure, and human health.
These current and predicted impacts of climate change, when considered from a human rights perspective, raise a number of issues that require consideration and are the focus of this study. One consideration is how far human rights have evolved to specifically recognise the need for a clean and healthy environment as a precondition for the right to life and other established human rights. Furthermore, how far has international law evolved to recognise the right to a clean and healthy environment as a separate human right? A third issue is the state of recognition and connection between other evolving human rights and the right to a healthy environment.
Given the complexity of the climate change issue, and the interconnectedness of various human rights to the numerous expected impacts of climate change, the list of possible human rights violations is long. While a complete assessment of various impacts of climate change is impossible at this stage, scientific impacts predicted for areas such as small island states and polar regions include deterioration of human health and well being, displacement of people and communities and threats to culture and development as likely outcomes of human induced climate change. Based on this overview of the expected impacts of climate change, in an effort to focus the discussion in this paper, the substantive analysis will be limited to the following questions relating to the human rights and the impacts of human induced climate change:
1. Under what conditions would the failure to reduce GHG emissions be considered a violation of the human right to life, liberty and security of the person?
2. Under what conditions would the failure to reduce GHG emissions be considered a violation of the right to development?
3. Under what conditions would indigenous human rights be violated by the failure to reduce GHG emissions?
4. What is the status of a human right to a clean environment, and under what conditions would the failure to reduce GHG emissions be considered a violation of the right to a clean environment?
These four issues, while by no means exhaustive, are collectively the most obvious battleground for individuals and communities whose way of life is threatened by human induced climate change. Before considering these issues in detail to assess whether and under what conditions human right violations might be made out, it is important to have some understanding of the context within which these issues are likely to be debated. This context is provided in the form of the Inter-American Human Rights Regime as the regime most likely to deal with these issues in the context of climate change.
This study is therefore undertaken in the following sequence. First, a general overview of the United Nations Human Rights Regime is offered. This is followed with a more detailed review of the Inter-American Human Rights (IAHR) regime given that it appears to have progressed further in recognising links between environmental protection and human rights than the UN regime. Furthermore, the IAHR regime is the most likely battleground for assessing human rights and climate change, given that Canada and the United States, two of the three highest per capita contributors to the problem are from this region. Finally, both of these countries include regions and citizens that are particularly vulnerable to climate change. Following the review of the IAHR regime, a claim of a human rights violation will be considered in the procedural and substantive context of the IAHR regime. It is in this part of the study that the paper will return to the four questions posed here, and will consider specifically whether and under what conditions a human rights claim under the IAHR regime is likely to succeed. The prognosis for success as well as possible implications of a successful claim is considered in the final section.
Any discussion of the link between climate change and human rights must consider the scope and meaning of human rights. While there is no universally accepted definition of human rights, there are a number of broadly accepted concepts which assist in defining the scope of human rights, including the following:
An attempt at defining a human right is provided by Maurice Cranston as:
A universal moral right, something which all men [sic] everywhere, at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human being simply because he [sic] is human.[14]
Human rights are considered by some to have evolved in three generations of rights. The first generation, civil and political rights, consists of such rights as the right to life, liberty and security of the person, freedom from slavery and torture, and the right to own property. The second generation, made up of economic, social and cultural rights, includes rights such as the right to health and well being, the right to social security, and the right to education. The third generation, commonly known as solidarity rights, includes the right to self-determination, the right to economic and social development, the right to peace, and the right to a healthy environment. The third generation is the most controversial in that its focus is on collective rather than individual rights. There is some debate about whether this is overall a constructive categorisation of human rights.[15] It does, however, quite usefully illustrate varying levels of uncertainty about the status of rights, suggesting that some, such as the right to life, are universally recognized and binding while the status of others, such as the right to sustainable development or the right to a healthy environment are less certain.
Central to any consideration of the state of global recognition is the United Nations (UN) Human Rights Regime, a regime that consists of a large number of international human rights norms. These norms, which are in turn reflected in regional and national human rights initiatives, are set out in a complex system of UN instruments that establish the substance of these norms as well as the procedures and mechanisms necessary for their implementation. Within the United Nations system, the recognition of human rights is contained in the United Nations Charter.[16] Article 55 of the Charter obligates UN member states to encourage solutions to economic, social, cultural, health and other related issues, and to promote universal respect for human rights.
The most recognised substantive source of human rights is generally considered to be the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948.[17] Most of the human rights set out in this Declaration are recognised as first generation human rights, which are reflected in numerous regional and national human rights statements. Included in the Universal Declaration are such basic rights as the right to life, liberty and security of the person, the right to freedom of religion, association and expression, and the prohibition of torture and slavery.[18] The Declaration also includes a right to property and the right not to be deprived of such property arbitrarily as well as a number of other second-generation rights.[19]
The Declaration was supplemented with two other key UN instruments, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both developed by the United Nations Commission on Human Rights.[20] These covenants embrace much of the Declaration, but they each include additional rights that are generally considered to be second generation human rights, such as social and cultural rights. Other binding UN human rights instruments, particularly those dealing with the elimination of discrimination and with the rights of children[21] also contribute to the global recognition of the link between environmental health and human rights.[22]
Through these instruments six UN treaty bodies are created to implement human rights recognised under the UN regime. Four of these bodies are considered to have particular relevance in the environmental context. They are the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, and the Committee on the Elimination of Racial Discrimination. The primary monitoring mechanism for these committees is the review of reports submitted by obligated states. Based on the review of filed reports and follow-up communication with the state in question, the committees then report on the status of a state’s compliance with human rights.
Some committees, including the Human Rights Committee, can communicate with other states in the course of their examination and, perhaps most importantly for purposes of this study, can receive individual complaints. Under Article 1 of the Optional Protocol to the International Covenant on Civil and Political Rights 1966,[23] the Human Rights Commission actively investigates and rules on individual complaints. This procedure is the oldest, most utilised, and considered to be the most authoritative within the UN regime. Otherwise these committees are limited in their ability to conduct active independent investigations by a combination of limited power, limited resources, and limited capacity.[24]
A number of non-binding and regional international instruments have also contributed to the development of human rights in relation to a right to a healthy environment. Their status is much less clear than that of the Universal Declaration and the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. On the one hand, there are three major soft law initiatives, the Stockholm Declaration on the Human Environment, the World Charter for Nature, and the Rio Declaration.[25] On the other hand there have been a number of global and regional efforts to codify a human right to a clean and healthy environment.[26] These efforts are considered in more detail below.
As indicated above, reference to human rights generally includes both recognised rights such as those in the Universal Declaration and rights that are claimed but not universally recognised. The state of recognition of a given human right in a given jurisdiction can depend on a number of factors, including domestic law, acceptance by the jurisdiction of applicable international law,[27] and the development of customary international law based on the concept of human rights as an inherent right that exists whether or not that right is recognised by a given jurisdiction. Hence the accused state’s acceptance of human rights may have little effect on the existence of a human right. However at the same time, domestic factors in an accused state will clearly affect its recognition of international rulings on violations and the ability of the international community to impose consequences.[28]
It is important to recognise that the concept of human rights as inalienable is in direct conflict with the concept of state sovereignty and the resulting foundation for international law that states can only be bound to obligations they freely choose to accept. This creates a dilemma. On the one hand, the concept of human rights entails recognising rights that derive simply from being human, and it is generally accepted that such rights should not depend on where you live, or what form of government you live under. Nevertheless the concept of state sovereignty works against the application of international law until a state has in some form accepted the obligation to comply.[29]
The solution to this dilemma suggested here is to consider human rights in two stages, stage one being the international recognition that all human beings are entitled to a given right, and the second stage, the process of implementing or developing an acceptance of that human right in states around the world.[30] The challenge for international human rights law is how to determine the substance and scope of these inalienable rights that all human beings should be entitled to, in the absence of agreement by nation states either through treaties or conduct.
It seems undisputed that the human rights that are recognised by international agreements or through customary international laws by conduct should be considered the foundation for all human rights. It has furthermore become clear in the context of international human rights that finding a strategy to move past a consensual approach among nation states is essential if human rights are to have meaning as inalienable rights.[31] What is suggested here is that the focus needs to be on credible independent sources to consider whether a human right claimed should be recognised as falling under the category of rights every human being should be entitled to.[32] Such claims support the evolution of existing human rights to recognise connections such as the need for a healthy environment as a precondition for the right to life, liberty and security of the person. Alternatively such a claim can also underpin a completely new and separate human right, such as a right to culture, community based human rights for indigenous peoples, and an independent right to a clean environment.
Credible sources for the recognition of such new and emerging rights would be pronouncements from global and regional human rights tribunals, and other authoritative bodies such as the International Court of Justice. Rulings of international tribunals with the authority to make declarations on the state of international human rights have a fairly well defined role in this process of establishing the state of evolution of international human rights. In addition, efforts by credible international organisations such as the UN High Commissioner for Human Rights, the UN General Assembly, and the IUCN can be an indication that our understanding of the scope of human rights is evolving.[33]
The role of other international efforts is less clear, and they are therefore considered here in a more limited sense. They are considered to the extent that they assist in determining the current state of thinking among international human rights experts. They are also considered to the extent that they are likely to influence international tribunals in their thinking on the evolution of human rights. In the context of this study, the focus will therefore be on the influence any such pronouncement on the recognition of links between human rights and a healthy environment has or is likely to have on the IAHR Commission, the international tribunal at issue here. The question of what the role of such efforts should be in the evolution of international human rights law remains, at least for purposes of this study, to be decided by international tribunals which are given the task of rendering opinions on the state of human rights. The definition of human rights offered by Cranston above provides some moral if not legal guidance for evaluating whether the concept of human rights has evolved in a particular way.[34]
With this general context of international human rights, particularly in the context of the United Nations Human Rights Regime, the study will now turn to the Inter-American Human Rights Regime. As indicated, it is the regional regime that is most likely be confronted with the questions posed in this study, whether and under what circumstances a state’s failure to effectively address climate change may constitute a human rights violation. This regime includes Canada and the United States, two of the three countries[35] that have in the past and are at present contributing the most green house gases on a per capita basis. Yet these states are among the few nations in the developed world that have the greatest capacity to address climate change. Ironically, these states have shown the least commitment to cooperate internationally to address the climate change issue.
In this section, the relationship between the climate change regime and the Inter-American Human Rights (IAHR) regime is assessed. The section starts with a general overview of the IAHR regime. Procedural issues are examined, such as who can bring a claim, and what conditions must be met before a claim is considered. The respective roles of the various IAHR bodies are identified, as is the relevance of the various substantive instruments covered under the regime. The four specific questions raised in the introduction are then considered in the context of the IAHR regime.
Structurally, the IAHR regime consists of the Inter-American Commission on Human Rights,[36] and the Inter-American Court of Human Rights, both of which report to the Organisation of American States (OAS). Following a brief overview of these institutions, the specific issue explored in this section is the potential for a ruling or opinion under the IAHR regime to demonstrate that failure by a member state to address climate change amounts to a violation of human rights against individuals affected by climate change now, and in the future.
The IAHR regime was chosen over the UN Human Rights regime,[37] in part because it has dealt with a number of recent claims brought by aboriginal communities which provide insight into how the Commission and the Court might respond to a claim that a state’s failure to address climate change constitutes as a violation of human rights. In addition, the IAHR regime was chosen because, given the current United States opposition to the Kyoto Protocol, it is perhaps the most obvious respondent to any claim brought forth.
The IAHR regime has evolved under the OAS since the formation of the OAS in 1948. The approval of the American Declaration of the Rights and Duties of Man (the Declaration) coincided with the adoption of the OAS Charter bringing into existence the Organisation of American States.[38] The Declaration was initially approved as soft law, but has since been found to be a source of binding international obligations for member states.[39]
In 1959, the implementation of the Declaration was supported through the creation of the Inter-American Commission on Human Rights.[40] This was followed up with a negotiation process that led to the adoption of the American Convention on Human Rights in 1969,[41] and the eventual creation of the Inter-American Court of Human Rights in 1979, the year the Convention came into force. Since then, there have been a variety of efforts to refine and further develop human rights under the IAHR regime, in the form of protocols and draft declarations. Structurally, the regime now consists of the IAHR Commission and the IAHR Court. Substantively, the following agreements relevant to the possible connection between climate change and human rights are currently in force or developing under the IAHR regime:
The status of these instruments ranges from binding on all to not binding on any member states. The OAS Charter and the Human Rights Declaration are binding on all parties.[44] The Human Rights Convention and the San Salvador Protocol are only binding on member states that have specifically ratified the respective agreement. The Indigenous Rights Declaration has not yet been adopted. The substance of the human rights applicable to a claim will therefore to some extent depend upon the status of ratification in the member state against which the claim is being made.[45] In the case of the United States, for example, a claim would have to be based on the OAS Charter and the Human Rights Declaration, as neither the Human Rights Convention nor the San Salvador Protocol has been ratified by the US.[46] Currently, Canada would be in the same position, also not having ratified either the Human Rights Convention or the San Salvador Protocol.
Substantively, the OAS Charter sets the general context for relations among member states, including reference to the mutual respect of state sovereignty, and a commitment to the peaceful settlement of disputes.[47] Of particular interest here is Article 35, which commits Member States to ‘refrain from practicing policies and adopting actions or measures that have serious adverse effects on the development of other Member States’.[48] With respect to human rights, Article 45 provides that:
all human beings, without distinction as to race, sex, nationality, creed, or social condition, have a right to material well being and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity, and economic security.[49]
The Human Rights Declaration is the only source of substantive human rights in the context of the OAS that is universally accepted and now considered binding on all member states.[50] Rights recognised in the Human Rights Declaration that are particularly relevant to the link between climate change and human rights include the right to life, liberty and security of the person,[51] the right to protection against abusive attacks,[52] the right to inviolability of the home,[53] the right to the preservation of health and to well being,[54] and the right to property.[55]
The Human Rights Convention was signed in 1969 and entered into force in 1978 upon ratification by 11 member states of the Organisation of American States. Neither the US nor Canada have ratified the Human Rights Convention or accepted the jurisdiction of the IAHR Court established by the Convention. Overall however, 25 of the 35 member states have ratified the Convention, and 22 of those states have formally accepted the jurisdiction of the IAHR Court. Substantively, while there are clearly differences between the Declaration and the Convention, in practice they have often not resulted in different standards for human rights.[56]
The San Salvador Protocol was adopted in 1988, and came into force in 1999. To date, twelve member states have ratified the Protocol. Under Articles 10 and 11, the Protocol provides that everyone has a right to health and a right to a healthy environment. Perhaps of most interest is the obligation in Article 10 for states to ‘promote the protection, preservation, and improvement of the environment’. Furthermore, Article 2 of the Protocol obligates states to pass domestic legislation to protect these guaranteed rights thereby making these rights a reality in their countries. While it is not clear from the Protocol whether the right to health and a healthy environment is seen as an extension or evolution of existing rights or alternatively as a new human right, there is a clear trend within the IAHR regime to recognise the right to a healthy environment as a human right. Other related rights recognised in the Protocol include the right to food, and the right to the benefits of culture.
As a further step in the evolution of the IAHR regime, the draft Indigenous Rights Declaration was approved by the Inter-American Commission on Human Rights (IACHR) in 1997.[57] As a starting point, the draft declaration makes reference to similar initiatives in other fora, including the United Nations and specifically the International Labour Organization’s Convention 169.[58] The declaration seeks to apply general human rights to an indigenous context, and to supplement these general rights to address the unique circumstances of indigenous peoples. The declaration addresses issues ranging from the right to belong to indigenous peoples, protection from forced assimilation, to cultural rights such as the right to cultural integrity.[59] With respect to environmental rights, the declaration progresses further than the San Salvador Protocol in that it recognises the special relationship between indigenous peoples and the environment and their cultural, social and economic dependence on the environment.[60] A focus of the right to environmental protection is the recognition of the special importance of collective rights in indigenous communities.
It is difficult to predict whether and when the draft declaration is likely to be adopted by member states. In the meantime, given its approval of the declaration, the Commission will likely be influenced by it in interpreting more generic human rights provisions in the Declaration, the Convention and the San Salvador Protocol.
Procedurally, the following documents are relevant to understand the respective roles of the IAHR Commission and the IAHR Court in overseeing the implementation of the various substantive instruments under the IAHR regime:
These instruments set out the procedure before the Commission and the Court. To the extent that procedural matters are likely to have an influence over the substance of the claim considered here, these procedural requirements are examined below.
For the purposes of this analysis, the focus is on the Commission, as all complaints must initially be brought before the Commission, and can only subsequently be referred to the Court by the Commission under appropriate circumstances. According to the current rules of procedure of the Commission,[65] any person, group of persons or non-governmental entity may submit a petition, as long as the petition is with respect to an alleged violation of a human right recognised under the IAHR regime. A petition can be brought by an individual on his or her own behalf, or by a person or organisation on behalf of an individual whose rights have allegedly been violated.[66] The petitioner also has the right to designate a person to represent him or her before the Commission. From a practical point of view, a climate change claim would most likely be brought by, or on behalf of residents of a small island state or on behalf of communities from Polar Regions. In fact, in December 2003, the Inuit Circumpolar Conference (ICC) announced its intention to commence a claim against the United States under the IAHR regime.[67]
One issue that was not raised in the context of a claim by the Inuit against the United States, but would arise in cases with similar claims by an individual or communities in a small island state is whether claimants have to be residents or citizens of the state against which they are making a claim. On the one hand, human rights appear to be primarily directed at state action against their own citizens.[68] On the other hand, the origin of this focus is the struggle in international law between state sovereignty and individual rights. This would suggest that there is no reason to limit the application of international human rights law only to violations by a state against its own citizens, especially if there are no avenues for the citizen’s own state to protect its citizens from the harm, or the state does not pursue avenues to protect its citizens. It may simply be that global environmental problems, including climate change, ozone depletion and acid rain among others, make a very convincing case for the need to extend these rights in recognition of the ever increasing trans-boundary impact of environmental degradation.[69]
The various instruments that make up the substance of the IAHR regime impose obligations on its member states. A claim brought before the Commission therefore must be brought against a member state bound by the substantive obligation under the IAHR regime that the claimant alleges has been violated.
The jurisdiction of the Commission to hear the complaint therefore depends upon the claimant having standing as a person whose rights are alleged to have been violated by a member state and upon the member state being bound to comply with the substantive obligation alleged to have been breached. The jurisdiction of the Commission is further limited to consider petitions that have been filed in accordance with the requirements set out in the respective instrument which is alleged to have been violated.
A petition must contain certain standard information as set out in Article 28 of the Rules of Procedure. Included in this basic information is a statement of facts surrounding the claim, the state the petitioner considers to be responsible, information regarding the exhaustion of domestic remedies, confirmation that there is no duplication with another international settlement process under way, and any request to withhold the identity of the petitioner.[71]
Once the petition is received by the Commission, it is registered, reviewed to assess compliance with applicable requirements, and a decision is made on whether the petition contains more than one distinct claim. If so, the claims may be divided into multiple separate claims. Similarly, multiple petitions surrounding the same fact situation may be joined into a single claim.
Before any decision is made on the admissibility of the petition, the relevant parts of the petition are forwarded to the alleged State in question for comment. Ordinarily, the State will have two months to respond. The parties may be provided with additional opportunities to comment on the claim, after which the Commission makes a ruling on the admissibility of the claim.[72] The ruling takes the form of a formal decision of the Commission that is made public and included in its annual reports.[73] If a claim is ruled to be admissible, a formal case is opened to consider the merits of the case. Other than a determination as to whether or not there is a basis for the allegation, there is no consideration of the merits of the case until after the admissibility of a claim is decided.
One crucial step in this process of considering the admissibility of a claim is a finding that the petitioner has exhausted domestic remedies. The rules governing this issue are generally favourable to the petitioner.[74] For example, the exhaustion of domestic remedies requirements do not apply where the State does not afford due process of law, where there is no access to effective remedies, and where there has been unwarranted delay.[75]
Once a claim is ruled to be admissible, the Commission is required to afford the petitioner a period of two months to submit additional information or arguments on the merits of the claim. Relevant portions will then be submitted to the accused State for a response within another two month period. Following this, there is the option of pursuing a friendly settlement process, the possibility of a hearing, on site investigations, and finally a decision on the merits.
The report of the decision on the merits shall identify whether or not there have been violations by a member state. The decision is to be based on the information provided and any other information that is a matter of public knowledge.[76] If violations have been identified, the Commission shall prepare a preliminary report with proposals on how to address the violations. This preliminary report is presented to the violating State for a response. The State has the opportunity to report on efforts to comply with the recommendations before a final report of the Commission is issued. If the violating State has accepted the jurisdiction of the Court, the Commission will provide the petitioner an opportunity at this stage of the process to consider the response of the violating State to the recommendations of the Commission and to comment on whether the case should be referred to the Court. In the absence of a referral to the Court, the Commission is free to publish its final report within three months of completing its preliminary report.[77] The Commission may then adopt a follow-up program to monitor the implementation of its recommendations or otherwise take measures to monitor whether the violation continues.
In addition, Article 49 provides that the Commission has jurisdiction to receive and review petitions with respect to alleged violations by states who are not parties to the American Convention on Human Rights. These petitions will be considered in the context of the American Declaration of the Rights and Duties of Man. The same rules of procedure apply to these petitions.[78]
The standard of proof[79] is comparatively less formal in international legal proceedings than domestic proceedings. There is specific recognition of the limited ability of claimants to get access to evidence to prove human rights violations in the context of the IAHR regime.[80] Under Article 39 of the Rules of Procedure, for example, there is a presumption that information submitted by a claimant is accurate, as long as it is not inconsistent with other information provided by the claimant. This presumption can be rebutted by the State in question through the submission of information that challenges the claimant’s information.
Human rights with links to some form of environmental protection were described by Philippe Sands as follows in 1995:
The right to life; prohibition against cruel, inhuman or degrading treatment; the right to equal protection against discrimination; the right to an effective remedy by competent national tribunals for acts violating fundamental rights; the right to receive information; the right to a fair and public hearing by an independent and impartial tribunal in the determination of rights and obligations; the right to protection against arbitrary interference with privacy and home, prohibition against arbitrary deprivation of property; and the right to take part in the conduct of public affairs.[81]
To consider the substance of a claim in the climate change context, the scope of human rights under the IAHR regime must first be assessed to determine to what extent it includes rights with clear links to environmental protection. A good starting point for the substantive scope of the IAHR Regime is the OAS Charter,[82] Article 45(a), which holds that all human beings have a right to ‘material well-being and to their spiritual development, under circumstances of liberty, dignity, equality of opportunity, and economic security’.
The American Declaration of the Rights and Duties of Man (1948)[83] includes the following relevant human rights:
Article I: Right to life, liberty, security of the person
Article VIII: Right to residence and movement
Article XI: Right to preservation of health and well-being
Article XIII: Right to benefits of culture
Article XXIII: Right to Property
The IAHR Convention[84] includes the following relevant rights:
Article 4: Right to Life
Article 7: Right to Personal Liberty and Security
Article 21: Right to Property
Article 22: Right to Freedom of Movement and Residence
Article 26: Progressive Development in Accordance with OAS Charter
The San Salvador Protocol (entered into force 16 November 1999)[85] adds the following relevant provisions:
Article 10: Right to Health
Article 11: Right to a Healthy Environment
Article 12: Right to Food
Article 14: Right to the Benefits of Culture
Finally, the Proposed American Declaration on the Rights of Indigenous Peoples[86] includes the following rights that are particularly relevant in the environmental context:
Article VII: Right to cultural integrity
Article XII: Right to health and well-being
Article XIII: Right to environmental protection
Article XVIII: Right to traditional forms of ownership and cultural survival, and the rights to land, territories and resources
Article XXI: Right to development
Collectively, these provisions in the OAS Charter, the Declaration, the Convention, the San Salvador Protocol and the Indigenous Rights Declaration are at the heart of any consideration of the state of recognition between the health of the environment and human rights under the IAHR Regime. However it is important to recognise that each of these instruments carries different weight in determining the status of the environment under the IAHR regime. As previously indicated, the OAS Charter and the Declaration are generally considered to be binding on all OAS states. The Convention and the San Salvador Protocol have come into force, but have not been ratified by all OAS states. The provisions of these two instruments are binding on states that have not ratified them only to the extent that the provisions have attained the status of customary international law. Finally, the Indigenous Declaration has been approved by the Commission, but has not been formally adopted by member states.
We now return to the four questions posed in the introduction to consider them one by one in the context of the IAHR regime.
In this section, the right to life, liberty and security of the person is considered as representative of those human rights listed by Sands which are well established and provides a connection to environmental protection. Reference to the right to life, liberty and security of the person can be found in most if not all global and regional human rights regimes. It is one of the most recognised, fundamental human rights. Within the IAHR regime, this basic human right is recognised under the OAS Declaration and the IAHR Convention. Other rights identified by Sands as relevant to the environmental context, and some not included in his list, such as the right to equality before the law without discrimination, are also contained in the Declaration. In the IAHR regime, the right to life, liberty and security of the person therefore clearly creates binding obligations on all member states. This provides the foundation for consideration of the link between these generally recognised first generation human rights, and the right to some level of environmental protection in the IAHR context.
Both the Court and the Commission have generally interpreted the right to life broadly. A good example is the 1985 report on the Status of the Yanomami Indians.[87] This case was initiated through a petition by the Yanomami Indians, an indigenous population in Brazil. At the heart of the claim was the construction of a highway through their traditional lands, the mining activity this attracted, and the resulting impact on the indigenous population. The petition was brought under the right to life, liberty and personal security, the right to residence and movement, and the right to the preservation of health and well-being. The claim was successful, even though much of the actual harm was directly caused by non-state actors, not the Brazilian government.
The specific harm claimed by the Yanomami Indians included the displacement of native villages, the introduction of prostitution into native communities, the introduction of disease, and other physical and psychological threats to their survival. These claims were linked both to the construction of the highway directly and the resulting mining activity once rich mineral deposits were discovered. It is important to note that in this case, the Commission did not find that there was an independent right to a clean environment, nor was any compensation ordered for damage to the environment. The Commission’s recommendations were limited to the establishment of protected boundaries and the recognition and protection of the cultural heritage and identity of indigenous peoples.
The 1997 Ecuador Report,[88] a more recent ruling of the Commission further illustrates the willingness to interpret the right to life broadly. In this report, the Commission dealt with a claim by the Huarorami Indians to the effect that the granting of oil concessions by the government of Ecuador had violated their human rights. Specifically, the claimants alleged that oil exploitation activities in Ecuador were permitted to operate such that they had and would continue to contaminate the water, air and land of local communities to the detriment of the health and lives of their inhabitants.
In response to the petition, the Commission conducted a general investigation into the effect of oil development on indigenous communities in Ecuador. In the process, the Commission established that the environmental impact of oil development and handling of this industry by the state of Ecuador violated the human rights of indigenous communities. In the process, the Commission formally recognised, for the first time in the IAHR regime, the connection between the right to life and the right to a healthy environment.
The Commission’s 1997 Report on Ecuador[89] clearly supports the view that a human rights claim under the IAHR regime, can be based on environmental harm. Upon investigation of the claim that oil development was causing serious environmental harm in Ecuador violating the claimants’ human rights, the Commission concluded as follows:
The American Convention on Human Rights is premised on the principle that the rights inhere in the individual simply by virtue of being human. Respect for the inherent dignity of the person is the principle which underlies the fundamental protection of the right to life and to preservation of physical well-being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.[90]
The Commission proceeded to make the point that this does not mean that human rights discourage or prevent development, rather ‘they require that development take place under conditions that respect and ensure the human rights of affected individuals’.[91] The view that the IAHR Commission in the 1997 Ecuador Report established the link between recognised human rights and environmental protection is well supported in the literature.[92]
Consistent with this approach by the Commission, the IAHR Court has made it clear that it considers the rights under various instruments, from the American Declaration of the Rights and Duties of Man to the San Salvador Protocol, as evolving over time.[93] The Court defined its role in this regard as ‘determining the legal status of the American Declaration by appropriately looking at the Inter-American system of today in light of the evolution it has undergone’.[94]
Most recently, the IAHR Court issued a ruling on a petition filed by the indigenous people of Awas Tingni Community in Nicaragua.[95] This case involved an indigenous community that historically had occupied a significant area of rainforest along the Atlantic coast of Nicaragua. The Community holds any rights it has collectively, and had attempted to have its claims recognised domestically for some time. In 1995, the government of Nicaragua granted a 30 year concession to log over 62,000 hectares of land that was also subject to this indigenous claim, and which had traditionally been occupied by the petitioners.
The case first went before the Commission, which found in favour of the petitioners and sent the matter on to the Court. The Court confirmed the Commission’s finding that human rights of the Awas Tingni communities had been affected by the granting of the licence. In so finding, the Court affirmed the collective rights of indigenous peoples to their traditional lands, resources, and environment.[96]
Another issue of relevance here is the fact that case dealt at least in part with a claim of future harm, which was accepted by both the Commission in the first instance and by the Court. The present harm identified was the interference with the community’s land claim rights. The future harm was the resulting interference by the Korean company with its traditional lands, resources and the environment the community depended on for their culture, their health and to meet their basic needs. The fact that there is a delay between the decisions being made today and any future climate change impacts that result from those decisions will therefore not impede a claim under the IAHR regime, as long as the harm leading to a human rights violation can be supported by sufficient evidence.
Finally, it is important to note that the Commission and the Court clearly have the legal basis through Articles 29 and 30 of the IAHR Convention[97] to recognise human rights as inherent rights that were not dependent upon a state’s ratification of a specific instrument, such as the San Salvador Protocol. Furthermore this is consistent with the Commission’s comments in the 1997 Ecuador Report confirming its willingness to apply the principle of inherent rights in the environmental context. This clearly opens the door for the Commission to rely on instruments not ratified by the accused State to determine whether a claimant’s human rights have been violated. Given that the Commission is limited to giving advisory opinions on the allegation of a human rights violation, the exercise of this function would seem appropriate and furthermore essential to the evolution of human rights within the IAHR regime. Otherwise, as discussed previously, it would be difficult to see how human rights could evolve to protect individuals and communities from any State action which the accused State has not already agreed to cease.
The recognition of the possible link between environmental degradation and a violation of a right to life must then be considered to be inevitable given the right factual basis. In other words, it is safe to predict that the recognition of the violation of existing human rights such as those listed by Sands as a consequence of human induced climate change will primarily be an evidentiary issue, one that is likely to be at the heart of any claim that the right to life has been violated by a state’s failure to address climate change.[98]
Assuming the IPPC’s predictions in its third assessment report come to pass,[99] the question of whether the evidentiary burden can be met is at best a question of timing. The IPCC’s conclusions summarized above clearly support a claim that the life, liberty and security of individuals from small island states and in Polar Regions will be threatened as a result of human impact on the climate system. The evidentiary question is whether the level of certainty is sufficient for a current finding of human rights infringement.[100] This then raises the related question of whether potential claimants will have to wait for the climate change impact to take place before a claim can be made, or whether it will be enough that the decisions resulting in climate change and human rights violations, have been or are being made.[101]
Even if claimants were limited to impacts that have already occurred, a claim could still succeed. The major remaining evidentiary issue would then be the debate between human induced versus natural climate change and the related question of whether the impacts of climate change have already resulted in a threat to life, liberty and security of individuals. If the claim can be made in advance of the impacts being felt, the issue of natural versus human induced climate change becomes less significant, and instead the focus shifts to whether predictions of future climate change from past, current, and expected future GHG emissions are accurate, and what level of certainty on those predictions is required for the claim to suceed.
Impacts of climate change in Polar Regions provide a good illustration of these issues. If the claim were limited to current impacts, it would be based on changes in ice cover, ice thickness, permafrost areas, and temperature changes and the impact of those changes on settlements, hunting practices, and generally on the lifestyle of resident communities such as the Inuit. In this context, the real issue would be how much of the observed change has resulted from human induced climate change, and how much has been the result of natural variations in the climate of the Polar Regions.
If the concept of future change predicted as a result of decision made at present on GHG emissions is accepted as the basis for a claim, the focus then shifts to future predictions based on emission scenarios and computer modeling. In that scenario, it will be less important to distinguish between natural and human induced changes observed in Polar Regions. Instead the focus of the debate is likely to be the level of certainty of the predictions of future changes. The question then becomes, for example, whether the prediction of 10 to 15 degree Celsius changes in average temperature in the Polar Regions, and the consequential effects for sea ice, permafrost, and so on, are sufficiently certain to form the basis of a claim.[102] The other factual issue regarding future impacts of climate change would be for affected individuals and communities to establish that these changes have affected or will affect their right to life, liberty and security of the person.
The Tingni Community Case suggests that both current and likely future impacts are relevant. The main issue will likely be the level of certainty and the nature of the evidence necessary to show the link between GHG emissions, climate change and the threat to life, liberty or security of the person. To the extent that a claim is based on future harm, the question of the reliability and relevance of future predictions will be crucial. The rulings of the Commission and the Court collectively suggest that a human right violation based on a State’s failure to address climate change could be made out if the consequences of that failure is to cause serious illness, impairment and suffering on the part of affected populations. The rulings furthermore suggest that a claim would not have to be based on present impacts of climate change, but could be based in part or in whole on impacts that are the likely or inevitable outcomes of past or present decisions made by the government of accused States. Finally, it seems clear that a State would not be able to defend a claim simply on the basis that the emissions were caused by non-State actors within the accused State.
The UN Declaration on the Right to Development defines development to include economic, social, cultural and political development.[103] It further imposes the primary responsibility on States to create national and international conditions favourable to the realisation of the right to development. This is further explained to impose a duty on states to cooperate in eliminating obstacles to development.[104] Article 8 requires states to take necessary measures for the realisation of the right to development, without drawing a clear distinction between development within a given state, and measures a state may take to affect the right to development outside its borders, either in a positive or negative manner.
Within the context of the IAHR Regime, the right to development is not recognised in the OAS Human Rights Declaration. There is reference in the Convention to progressive development.[105] The purpose and scope of this provision appears to be similar to the UN Declaration on the Right to Development, in that it imposes a general duty on member states to work toward the objectives set out in the OAS Charter. It does not appear to extend obligations of states further, such as by imposing a duty to ensure capacity for maintaining minimum levels of development. The San Salvador Protocol does not include any reference to a right to development.
The Draft Indigenous Human Rights Declaration, on the other hand, does make specific reference to a right to development in Article XXI. This provision makes specific reference to development rights that are likely to be threatened by human induced climate change. Article XXI refers to the rights of indigenous peoples to choose their own development path, even if it is different from the path chosen by their national governments. This would suggest a right of choice to continue customary traditional practices relying on renewable resources among indigenous communities. Furthermore, Article XXI establishes a right to restitution or compensation when indigenous rights to development have been compromised.
In the 1997 Ecuador Report,[106] the IAHR Commission focussed on the link between the right to development and the right to be protected from harm resulting from pollution. It made the point that the right to development is not unlimited, but that it has to be exercised within the context of other human rights. Here we are considering the reverse question. Given that development cannot take place without the resources provided by nature, at what stage of interference with nature does harm to nature and natural systems, such as interference with the global climate system constitute a violation of a right to development? It seems clear from the IPCC reports that climate change does and will continue to affect the right to development in small island states and in Polar Regions.
Such a human rights obligation to prevent changes to our climate system that seriously interfere with development is consistent with the objectives set out in the UNFCCC.[107] Article 2, for example, sets as one of its objectives, the stabilisation of GHG emissions at levels that will allow sustainable development to take place. There is considerable evidence both from the IPCC and other sources that somewhere in the range of two degrees Celsius increases in the global average temperature[108] may be the upper limit of what our climate system can absorb without seriously compromising the objectives of Article 2.[109] Given what is already being observed in more sensitive regions, including temperature increases in the range of five degrees in Polar Regions, it would appear likely that the right to development is already being violated by nations responsible for allowing continual accumulation of GHG concentrations. Current policies and actions of states such as the United States, in terms of historical contribution to the problem, current emissions, domestic response, and international role, all point to a significant contribution to violations of the right to development in those regions.
As with the concept of human rights itself, there is no generally accepted definition of indigenous peoples. Various definitions of indigenous peoples have been offered by a variety of sources, including the International Labour Organisation (ILO),[111] the Independent Commission on International Humanitarian Issues, and the World Bank. Collectively, they include the following factors which offer some guidance for what constitutes indigenous peoples:
1. Pre-existent, or descendent from original populations of a given country
2. Non-dominance
3. Close connection to traditional lands and other natural resources
4. Subsistence oriented
5. Cultural differences, strong sense of separate identity
6. Indigenous language
7. Self identification as indigenous[112]
The Proposed American Declaration on the Rights of Indigenous Peoples[113] include the following rights that are particularly relevant in the environmental context:
Regardless of the status of the Draft Indigenous Human Rights Declaration, given the willingness of the Court and the Commission to interpret existing rights both broadly and dynamically evolving over time, it is likely that the content of the declaration will have a significant influence over the Court’s and the Commission’s interpretation of rights set out in the Declaration and the Convention. For example it would be natural for the Commission to consider the Draft Indigenous Human Rights Declaration in determining the scope of the right to life, liberty and security of the person in an indigenous context. That would mean considering the special relationship and dependence of indigenous communities with the environment and natural resources for food, shelter, and cultural needs. This approach is clear from the ruling of the Court in the Tingni Community Case,[114] where the court applies the right to property in the Convention to extend to the protection of indigenous rights in a way that clearly recognises an evolution of our understanding of property rights and how they relate to indigenous communities.[115]
Finally, it is worth noting that the status of an indigenous human right to a clean environment has potential implications beyond indigenous human rights. It is suggested here that the indigenous context might be a good indicator of future directions in the evolution of the link between human rights and the environment. It seems clear that indigenous communities have a special connection to nature and depend culturally, socially, and economically on a healthy environment more than the general population. At the same time, similar claims can and undoubtedly will be made by others who also choose to live in a manner that makes them vulnerable to changes in the condition of the environment in which they depend upon for food, shelter, and cultural enrichment. The fact that courts and tribunals are demonstrating increasing willingness to recognise these factors in the context of indigenous human rights suggests that the door may be open in the future to similar claims by non-indigenous claimants who are able to establish a similar dependence on the environment under threat.
The first clear global expression of something close to a human right to a healthy environment was provided in the Stockholm Declaration.[117] It did so most notably in Principle one, which states in part that humans have the right to live ‘in an environment of a quality that permits a life of dignity and well being’, and that humans bear ‘a solemn responsibility to protect and improve the environment for present and future generations’. The Declaration further explores the responsibility of humans to protect and preserve as well as share the benefits of all natural resources, again, pointing to a human right to a healthy environment and an equitable share of access to and benefits from the resources it provides.
The Stockholm Declaration was followed up with the 1982 World Charter for Nature.[118] The Charter does not make specific reference to a human right to a certain level of environmental quality, but its provisions are generally consistent with an existence of such a right. The Charter imposes obligations on states to protect and preserve nature and natural resources much in the same way as the Stockholm Declaration aimed to achieve ten years earlier. The Rio Declaration[119] fails to make any specific reference to a given standard of environmental health as a human right, so it can at best been seen as preserving the status quo as established through principle one of the Stockholm Declaration.[120]
This trilogy of soft law declarations on the environment from Stockholm to Rio is, of course, not the only indicator of the evolution of an internationally recognised human right to a clean environment. Other sources to consider would include the interpretation of the Universal Declaration on Human Rights, Regional Human Rights initiatives,[121] developments with respect to indigenous rights to a healthy environment such as the ILO Convention 169 on Indigenous and Tribal Peoples, the Draft Declaration on Indigenous Human Rights approved by the IAHR Commission, and the Draft Declaration of Principles on Human Rights and the Environment (1994).[122]
A globally recognised, separate right to a clean environment is likely still some time away. The global community is still struggling to define the exact scope of such a human right. Nevertheless, regionally such a right is recognised in some human rights regimes, most clearly in Africa, where it is in the form of a collective right.[123] In the Americas, such a right is recognised by states that have ratified the San Salvador Protocol, and it must be considered likely that the IAHR Commission would recognise such a human right in some form, even amongst states that have not yet ratified the Protocol. Claims in the climate change context against Canada or the United States, both of which have yet to ratify the San Salvador Protocol, would directly confront the Commission with the issue of the status of a human right to a clean environment.
Historically, efforts to consider the state and substance of the right to a clean or healthy environment as a separate human right have focussed on a few well recognised binding and non-binding instruments, such as those previously referred to in other parts of this study. They include the Stockholm and Rio Declarations, various UN human rights instruments, regional efforts to recognise this right, and the 1994 Draft Declaration of Principles on Human Rights and the Environment.[124] While this Declaration may still be the best indication of what the substance of a right to a clean environment might appear to look like, it is no longer the only effort. In fact, in a recent book, Maguelonne Dejeant-Pons and Marc Pallemaerts[125] have put forward the first published comprehensive collection of agreements, instruments and other documents relevant to an assessment of the status or substance of human rights to a healthy environment. The book lists numerous sources of statements that can support the current status and future evolution of a human right to a clean and healthy environment. For purposes of simplicity, the Draft Declaration will be considered here as the primary basis for determining the substance of a human right to a healthy environment.[126]
Based on the 1994 Draft Declaration, the heart of a right to a clean environment is the recognition of the indivisibility of cultural, economic, social, political, and environmental rights. Furthermore the draft declaration embraces the concept of sustainable development and intergenerational equity. It does so in a way that clearly positions the right to development as dependent upon intra and intergenerational equity. In other words, it clarifies that equity comes first. The right to development is limited by the obligation to ensure sustainable and equitable outcomes for now and into the future. Article 4 reads as follows:
All persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.[127]
A number of the rights in the Draft Declaration are qualified in such a way as to limit their application to incidents of direct interference with already existing human rights, such as the right to life. Such proposed rights include the right to air, water and food necessary to ensure human health. However there are signs of a shift away from this connection as a precondition. An example would be Article 6, proposing a right to preservation of elements of the environment necessary to maintain biological diversity and ecosystems.
A useful starting point in considering the scope of these rights is the question of what level of environmental health is protected. The answer for most of the substantive rights in the Draft Declaration appears to be that it is a level of environmental health that prevents interference with the health or well-being of humans. This would appear to be a sensible definition of a human right to a clean environment, though there may be considerable debate about the level of interference that would result in a violation of such a right and the burden of proof associated within each claim. It is also clear however, that the Draft Declaration does not exclude rights that have only an indirect link to human health, such as the right to the preservation of biodiversity or the right to the protection of ecosystems. Perhaps the most interesting question is whether the right to a clean environment protects the rights of future generations to the same standard of environmental health.[128] The answer here, based on Article 4 of the Draft Declaration, is clearly yes, given the reference to equity and the clear limit on the rights of the present generation when it comes to impairing the rights of future generations. While this is still somewhat open to interpretation, the wording of Article 4 appears to clarify that the rights of present generations cannot be given priority over those of future generations. This is an issue left open in most definitions of sustainable development.
Considering comments in the 1997 Ecuador Report, it must be considered likely that the Commission recognises human rights to a healthy environment in some form. It is also likely that the Commission will be influenced by the San Salvador Protocol, the Draft Declaration on Indigenous Human Rights, and the Draft Declaration of Principles on Human Rights and the Environment in defining the scope of such a right.
The real question is whether evidence of interference with the climate system, or destabilisation of the global climate system will be enough, or whether more specific links will have to be drawn between the impacts felt in Polar Regions and Small Island States and the GHG emissions from a country such as the United States. A separate right to a healthy environment provides new avenues only to the extent that it allows a human rights claim to stand solely on the basis of proving that there is an impact on the environment. As long as a tribunal still requires specific evidence of the human impact resulting from the environmental change as a precondition for finding a human rights violation, the separate right to a healthy environment will remain a hollow right.
The crucial test will therefore be whether the right to a clean environment and its violation in the climate change context will be recognised in the absence of a specific and proven human impact.[129] This will have to be followed closely in the future evolution of the right to a healthy environment, in the ongoing debate over its scope and nature, be it under regional human rights regimes in the Americas or Africa, under national provisions in countries that have enshrined a right to a clean environment in their national constitutions, or in the context of the ongoing effort to develop global consensus on the existence, nature and scope of such a right. In the context of the IAHR regime, given past rulings of the tribunal and the substance of the San Salvador Protocol, the existence of some form of right to a certain minimum condition of the environment is likely to be accepted. The debate is therefore likely to turn quickly to the scope of such a right, including whether in specific cases the right to a clean environment exists in the absence of proven any human impact.
The inevitable conclusion is that a claim brought by an individual or community affected by human induced climate change can succeed in a human rights claim under the IAHR regime against a member state that is responsible for that change. Claims can be based on existing human rights recognised in the IAHR regime under a number of instruments binding on some or all of the member states. Alternatively, a claim could be brought on the basis of a separate right to a clean environment. A middle ground between these two approaches might be a claim that is based on the general recognition that a stable climate, free from human interference, is a pre-condition for many human rights that have been accepted as binding by the international community generally and member states of the OAS specifically.
Internationally, there are indications that we are moving towards recognising a right to a healthy environment as a separate human right. Regional efforts such as the San Salvador Protocol, and regional efforts in Africa, point in this direction, as do tribunal rulings and academic commentary. More specifically, in the context of the IAHR regime, the Commission, in the 1997 Report on Ecuador, indicated a willingness to consider the right to protection from environmental pollution before the San Salvador Protocol came into force.
There are clear indications that the move toward formal recognition of a right to a healthy environment may be influenced by an increasing acknowledgement of indigenous human rights, given their special relationship to the environment and their unique social, cultural and economic dependence on nature. Various draft declarations on indigenous human rights clearly point in this direction, as does the ILO Convention 169 on indigenous rights. Nevertheless, in case of a claim against a state that has not ratified the San Salvador Protocol, such as the United States or Canada, it is questionable whether the IAHR Commission would go as far as formally ruling that these countries are in violation of an independent right to a clean environment as a result of their climate change policies.
Making out a claim under more traditional human rights such as the right to life, the right to health, or the right to property is likely to be successful if and when there is sufficient evidence to substantiate the claim. While the burden of proof remains for the state, the eventual success of a claim will depend upon the credibility of the science presented, and the ability of the claimant to link actions of the state to the impacting changes that are taking place or are predicted to occur in the future. If the findings of the IPCC are accepted, and the reports on changes that have already taken place in the Arctic are accurate, it would seem likely that a claim brought by northern communities will be successful even if based on evidence from current impacts alone.
This leaves as the third avenue the position that a stable climate is a precondition for numerous human rights. This, if accepted, would limit the debate to whether a given state is responsible for the destabilisation of the climate as a result of its actions or omissions. On balance, regardless of whether this is formally accepted by the Commission, it is unlikely that the link between climate change and existing human rights such as the right to life, food, property, health, culture, development, security and water will be a major barrier for any claim.
The crucial issue, from an evidentiary perspective, is likely to be the level of responsibility for climate change that can be attributed to a given state as a result of its actions and policies on the issue. In other words, will accused states be able to avoid liability by claiming that climate change would be happening even if they made more serious efforts to reduce their emissions? In the case of Canada, the argument would be most obvious, given that in spite of its high per capita emissions, Canada’s total emissions is currently less that 3% of global emissions.
Consistent with the generally more lenient approach to evidence in recognition of the imbalance of power and resources between the claimants and the accused states in the human rights context, it would only be reasonable to conclude that the claimant would not have to prove that the climate change impacts would not occur ‘but for’ the actions of the accused state. As a starting point, there are numerous secondary effects of a state’s position on climate change that are not reflected in an assessment of a state’s GHG emissions alone. The ‘but for’ test would therefore be an inadequate measure of a state’s responsibility for human rights violation, even leaving aside the inequity of placing such an evidentiary burden on an individual or community with often very limited resources.
There are a number of secondary effects to consider. For example, the United State’s position on energy efficiency, conservation, public transportation, urban planning and climate change since the 1970s, has not only resulted in per capita emissions in the US being twice that in Europe, but also prevented an agreement on binding targets under the UN Framework Convention. Moreover, the United State’s role in the climate change negotiations is at least partly responsible for lower targets negotiated under the Kyoto Protocol. Other criticisms include loopholes for state compliance since Kyoto, and significant delays in the implementation of the Protocol.[130] In short, the impact the United States has had on global efforts to address climate change goes well beyond GHG emissions in the United States.
Even in the context of state responsibility and resulting damage claims before the International Court of Justice, or damage claims before domestic courts using principles such as negligence or strict liability, however, courts have introduced legal principles that would prevent accused states from applying the ‘but for’ test to argue that they did not cause human rights violations associated with GHG emissions. Specifically, exceptions to the ‘but for’ test have been recognised in case of multiple defendants, or multiple parties who are collectively responsible for the commission of a wrong.[131] It is therefore highly unlikely that the IAHR Commission would place the burden of proof on the claimant to show that the impacts would not occur or have occurred but for the policies of the accused state. Rather, a finding that an accused state has, on balance, contributed to the problem rather than to the solution should prove sufficient in this context.
Factually, it is important to keep in mind that the United States and Canada are currently the highest per capita contributors to GHG emissions (together with Australia). Both states are historically among the highest contributors for green house gases currently in the atmosphere, and are among the states that have the greatest capacity (in terms of economic strength and domestic opportunities to reduce emission) to address the issue of climate change both domestically and internationally. On balance, it must be considered unlikely that causation would pose a significant problem for a claim against either the United States or Canada.
This leaves one final question for this study. Assuming that a claimant can succeed against a state such as the United States or Canada for their failure to address climate change, what impact is this likely to have on the future evolution of the climate change regime? There is, of course, no straightforward answer to this question. As a starting point, it is important to recall that a claim against Canada or the United States would involve limited remedies under the IAHR regime due to the fact that neither state has accepted the American Convention or the jurisdiction of the IAHR Court. This leaves as the only direct outcome an advisory opinion of the IAHR Commission on the compliance of the accused state with human rights recognised under the IAHR regime. The question therefore becomes whether such an advisory opinion is likely to influence government policy on climate change.
In Canada, if an advisory opinion concludes that Canada is in violation of Inuit human rights, this could have significant long-term impacts. It could make it difficult for those opposed to effective climate change action to continue to publicly oppose action to address this issue. Furthermore it could permanently shift the debate from whether climate change should be taken seriously to how much and how quickly climate change impacts can be rectified.
Impact in the United States is much more difficult to predict, and a complete response is well beyond the scope of this study. It is clear, however, that there are many factors that have influenced the United States position on climate change. In fact, that position has changed over time in all levels of government. From the Clinton to the Bush administration, there has been a shift from multilateral cooperation and domestic implementation to limited bilateral cooperation and domestic action demanding only voluntary measures, research and development for climate change. On the other hand at other levels of the United States government, there seems to be more willingness to take climate change seriously. It is difficult to assess, in this context, what relative influence a finding that the United States is violating human rights of the Inuit people would have on domestic policies for climate change. However it may compel the United States to at least appear to be acting on this issue. This may in turn strengthen public support for climate change measures in the United States, at the state level if not nationally.
In this context it is important to consider that the main contributors to GHG emissions are still developed countries. These are countries that tend to pride themselves on their human rights record, and have proven themselves much more susceptible to suggestions that their actions are in violation of human rights. A finding of a human rights violation is therefore likely to have a significantly larger impact in countries such as Canada and the United States than apparently less democratic states, or states that have a less stellar human rights reputation.
Climate change is as much about equity as it is about environmental protection and biodiversity. Too much public discourse on this issue has been about economics. Human rights have the potential to provide intra and intergenerational equity aspects of this issue the attention it deserves. While it is debatable whether this is enough, or whether it is more appropriate to consider environmental protection independent of its impact on human rights is a debate for another day. There are signs that human rights to a clean environment may actually evolve to cover all aspects of nature, not just essential rights associated with meeting immediate human needs. In the meantime, engaging in the debate about the impact of human rights as a result of climate change can only serve to accelerate international progress on this issue.
[*] Associate Director, Marine and Environmental Law Institute, Dalhousie Law School.
[1] For a more detailed discussion of this issue, see: Bradley A Harsch, ‘Consumerism and Environmental Policy: Moving Past Consumer Culture’ (1999) 26(3) Ecology Law Quarterly 543.
[2] For a general overview of the most recent findings of the IPCC, see Robert T Watson et al (eds), Climate Change 2001: Synthesis Report: A Contribution of Working Groups I, II and III to the Third Assessment Report of the Intergovernmental Panel on Climate Change (IPPC) (2002); John T Houghton et al (eds), Climate Change 2001: The Scientific Basis: Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change (IPPC) (2002); James J McCarthy et al (eds), Climate Change 2001: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (2002); Bert Metz et al (eds), Climate Change 2001: Mitigation: Contribution of Working Group III to the Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (2002).
[3] For a comparison of the science between 1997 and 2001, compare the second and third assessment reports of the IPPC. For the second IPPC assessment reports, see John T Houghton et al (eds), Climate Change 1995: The Science of Climate Change: Contribution of Working Group I to the Second Assessment of the Intergovernmental Panel on Climate Change (IPPC) (1996); Robert T Watson, Marufu C Zinyowera and Richard H Moss (eds), Climate Change 1995: Impacts, Adaptations and Mitigation of Climate Change: Scientific-Technical Analyses: Contribution of Working Group II to the Second Assessment of the Intergovernmental Panel on Climate Change (IPPC) (1996); James P Bruce, Hoesung Lee and Erik F Haites (eds), Climate Change 1995: Economic and Social Dimensions of Climate Change: Contribution of Working Group III to the Second Assessment of the Intergovernmental Panel on Climate Change (IPPC) (1996).
[4] For an overview of recent emission trends, see Metz et al, above n 2, 27-28. It shows recent trends for energy use and CO2 emissions in various regions of the world from 1971 to 1998. The most significant increases have occurred in industrialized countries and in Asia Pacific developing states.
[5] Kyoto Protocol to the UN Framework Convention on Climate Change, 3rd Sess, pt 2, Annex I, UN Doc FCCC/CP/1997/7/add 1, (1997) reprinted in (1998) 37 ILM 22, hereinafter referred to as the Kyoto Protocol. The Kyoto Protocol is the first international agreement with binding obligations to reduce GHG emissions.
[6] In spite of the rhetoric that economic wellbeing of countries like the US is a precondition for addressing climate change globally, it is clear from the level of Official Development Assistance (ODA) in these countries that climate change is not likely to be solved through an economic growth first approach. In fact, it seems clear that this is the approach which has led to the current situation.
[7] For a more detailed assessment of the UN Human Rights System as it relates to the environment, see C Dommen, ‘Claiming Environmental Rights: Some Possibilities Offered by the United Nations’ Human Rights Mechanisms’ (1998) 11 Georgetown International Environmental Law Review 1; L Malone, ‘Exercising Environmental Human Rights and Remedies in the United Nations System’ (2002) 27 William and Mary Environmental Law and Policy Review 365.
[8] See Watson et al, above n 2, 276.
[9] Ibid 277. For a more detailed and recent assessment of climate change in the arctic region, see Susan Joy Hassol, Impacts of a Warming Arctic; Arctic Climate Impact Assessment (2004).
[10] See McCarthy et al, above n 2, 847.
[11] See Watson et al, above n 2, 277.
[12] See McCarthy et al, above n 2, 855-870.
[13] B H Weston, ‘Human Rights’ (1986) 6 Human Rights Quarterly 257, 262.
[14] Maurice Cranston, What are Human Rights? (1973) 36.
[15] See, for example, P Birnie and A Boyle, International Law and the Environment (2002) 253.
[16] Reprinted in H Kindred et al, International Law (6th ed, 2000) 1.
[17] Universal Declaration of Human Rights GA Res 217 A (III), UN GAOR, 3rd Sess, Supp No 13, UN Doc A/810, 71 (1948) reprinted in B H Weston et al, Basic Documents in International Law and World Order (2nd ed, 1990) 298.
[18] Ibid arts 3, 4, 5, 19.
[19] Ibid art 17.
[20] International Covenant on Civil and Political Rights, opened for signature on 16 December 1966 (entered into force 23 March 1976) reprinted in 6 ILM 368; International Covenant on Economic, Social and Cultural Rights, opened for signature on 16 December 1966, 6 ILM 360 (entered into force 3 January 1976).
[21] See International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965, 5 ILM 350 (entered into force 4 January 1969). See also the Covenant on the Rights of the Child opened for signature on 20 November 1989, 28 ILM 1448 (entered into force 2 September 1990). Rights recognised in this Convention that have particular relevance to environmental issues include the right to be free from discrimination (article 2), the right to life (article 6), the right to health (article 24), and the right for children of minorities and indigenous populations to enjoy their own culture (article 30).
[22] For a more detailed discussion of the recognition of the link between racial discrimination and environmental health and between the rights of children and the right to a clean environment, see Dommen, above n 7.
[23] Reprinted in C A R Robb, Human Rights and Environment, International Environmental Law Reports (2001) vol 3, 898.
[24] See Dommen, above n 7, 7-10 and 22.
[25] Declaration of the United Nations Conference on the Human Environment, UNGAOR, U.N. Doc. A/CONF.48/14/Rev.1 (1972). Available online at United Nations Environment Programme < http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=
1503> (1 September 2004). World Charter for Nature, GA Res 37/7, UNGAOR 37th Sess, UN Doc A/RES/37/7 (1982). Available online at the United Nations < http://www.un.org/
documents/ga/res/37/a37r007.htm> (1 September 2004). United Nations Conference on Environment and Development (Rio de Janeiro 3-14 June 1992) ACONF 151/26 vol 1. Available online at the United Nations < http://www.un.org/documents/ga/conf151/
aconf15126-1annex1.htm> (1 September 2004).
[26] Such efforts range from the Draft Declaration of Principles on Human Rights and the Environment, UN Doc E/CN.4/Sub.2/1994/9 (1994) to regional efforts such as the San Salvador Protocol in the 1988 Additional Protocol to the American Convention on Human Rights, OAS 69 (1988), signed 17 November 1988 (entered into force 1989) 28 ILM 156, art 11. For a more comprehensive account and discussion of these efforts see M Dejeant-Pons and M Pallemaerts, Human Rights and the Environment (2002) 118.
[27] Examples include agreements developed under regional human rights regimes such as the American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123, 9 ILM 673 (entered into force 18 July 1978).
[28] See E M Kornicker Uhlmann, ‘State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms’ (1998) 11 Georgetown International Environmental Law Review 101.
[29] See P E Taylor, ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law?’ (1998) 10 Georgetown International Environmental Law Review 309; J Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Journal of Environmental Law 283.
[30] See Jack Donnelly, International Human Rights (2nd ed, 1998) 28.
[31] Traditional sources of international law as recognised by the International Court of Justice include conventions, customs, general principles of law recognised by civilized nations, and judicial decisions and academic literature as subsidiary means of determining the rules of law; see Statute of the International Court of Justice, June 26, 1945, 59 Stat 1055, 33 UNTS 993, (1945) arts. 38(1)(a), (b), (c), (d).
[32] See Luis E Rodriguez-Rivera, ‘Is the Human Right to Environment Recognized under International Law? It Depends on the Source’ (2001) 12 Colorado Journal of International Environmental Law and Policy 1, 2-3.
[33] A good example are the efforts of the IUCN and other organizations on the 1995 Earth Charter and the ongoing work to further develop and gain international recognition for the Charter. For an overview of its evolution and content, see William S Lynn, ‘Situating the Earth Charter: An Introduction, in Global Ethics and the Earth Charter’ in William S Lynn and Ron Engel (eds), Worldview (2004) 1. The pre-publication of this working paper is available at Practical Ethics online <http://www.practicalethics.net/practical_ethics_c1.pdf> (20 February 2004).
[34] Cranston, above n 14.
[35] The third is Australia.
[36] Inter-American Commission on Human Rights Res VIII, Fifth Meeting of Consultation of Ministers of Foreign Affairs, OASOR, 12-18 August 1959, Final Act, 10-11, OEA/ser. C./II.5 (1960). In 1970, an OAS Charter amendment referred to as the ‘Protocol of Buenos Aires’ opened for signature on 27 February 1967, 21 UST 607, (entered into force February 27 1970) changed the status of the Commission to that of an official organ of the OAS. The Commission now serves a dual role. It is an organ of the OAS and the body responsible for the implementation of the Convention.
[37] For an overview of the UN Human Rights system as it applies to a human right to a clean or healthy environment, see Dommen, above n 7.
[38] The American Declaration of the Rights and Duties of Man, adopted at the 9th International Conference of American States, available online at The Inter-American Commission on Human Rights <http://www.cidh.org/Basicos/basic2.htm> (31 August 2004). See also Weston et al, above n 17, 293.
[39] For an interpretation of the American Declaration of the Rights and Duties of Man within the framework of Article 64 of the American Convention on Human Rights see IACHR Advisory Opinion, OC-10/89, 14 July 1989, IACHR (Ser A) No 10 (1989); James Terry Roach and Jay Pinkerton v United States, Case 9647, Res 3/87, 22 September 1987 Annual Report 1986-1987, [46-49]; Rafael Ferrer-Mazorra et al v United States, Report No 51/01, Case 9903, 4 April 2001. There is some controversy over the exact status of the Declaration continues due to some ambiguity in the language of the advisory opinion.
[40] Inter-American Commission on Human Rights Res VIII, Fifth Meeting of Consultation of Ministers of Foreign Affairs, OASOR, 12-18 August 1959, Final Act, 10-11, OEA/ser C./II.5 (1960).Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago, Chile, 12 to 18 August 1959, Final Act Document OEA/Ser.C/II.5, 4-11.
[41] The American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS, 123. Reprinted in 9 ILM 673 (entered into force 18 July 1978). The Court was created under Chapter VII, Part II of the American Convention on Human Rights.
[42] See 1988 Additional Protocol to the American Convention on Human Rights, opened for signature 17 November 1988, reprinted in 28 ILM 156 art 11.
[43] Draft Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on 26 February 1997. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser/L/V/II, 90 Doc 9 rev 1.
[44] Member states include all states of North, Central, and South America including Cuba. Cuba has however been prevented by resolution of member states of the OAS from participating in the organisation.
[45] Subject to an argument that regardless of the status ratification, these agreements reflect an evolution in the understanding of existing human rights and their relationship to human dependence on a clean and healthy environment.
[46] The United States signed the Convention on 1 June 1977, but the Senate did not ratify it. See ‘Current State of Conventions and Protocols on Human Rights’ in Inter-American Yearbook on Human Rights (1994) vol 1, 108.
[47] See Preamble and article 2 of the Charter of the Organisation of American States, 119 UNTS 3 (entered into force 13 December 1951) reprinted in Weston et al, above n 17, 50.
[48] Ibid art 35.
[49] Ibid art 45(a).
[50] See referred cases in above n 39. See also Christian B White and Gary K Potter v The United States of America and the Commonwealth of Massachusetts Inter-American Court of Human Rights 25, 38, OEA./ser.L./V./II.54, docv 9 rev 1 (1980-81).
[51] The American Declaration of the Rights and Duties of Man, adopted at the 9th International Conference of American States, available online at The Inter-American Commission on Human Rights <http://www.cidh.org/Basicos/basic2.htm> (31 August 2004). See also Weston et al, above n 17, 293.
[52] Ibid art V.
[53] Ibid art IX.
[54] Ibid art XI.
[55] Ibid art XXIII.
[56] See Thomas Buergenthal, International Human Rights (2nd ed, 1995) 176.
[57] Draft Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on 26 February 1997. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser/L/V/II, 90 Doc 9 rev 1.
[58] Convention Concerning Indigenous and Tribal Peoples in Independent Countries ILO Convention 169, (entered into force 5 September 1991), available online at the University of Minnesota < http://www1.umn.edu/humanrts/instree/r1citp.htm> (31 August 2004).
[59] Draft Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on 26 February 1997. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser/L/V/II, 90 Doc 9 rev 1 arts 7 and 10.
[60] Ibid art 13.
[61] Statute of the Inter-American Commission on Human Rights, OAS Res No 447, 9th Sess, (entered into force October 1979) available online at University of Minnesota < http://www1.umn.edu/humanrts/oasinstr/zoas6cts.htm > (31 August 2004).
[62] Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 109th Sess, December 2000, (entered into force 1 May 2001). Available online at Inter-American Commission on Human Rights <http://www.cidh.org/basicos/
basic16.htm> (23 August 2004).
[63] Statute of the Inter-American Commission on Human Rights, OAS Res No 447, 9th Sess, (entered into force October 1979) available online at University of Minnesota < http://www1.umn.edu/humanrts/oasinstr/zoas6cts.htm > (31 August 2003).
[64] Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 109th Sess, December 2000 (entered into force 1 May 2001). Available online at Inter-American Commission on Human Rights <http://www.cidh.org/basicos/
basic16.htm> (23 August 2004). Collectively, the rules set out in these four instruments guide the overall process. As the US has not accepted the jurisdiction of the IAHR Court, and the focus of this study is on a potential claim against the United States, the emphasis here is on the procedures before the Commission.
[65] Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 109th Sess, December 2000, (entered into force 1 May 2001). Available online at Inter-American Commission on Human Rights <http://www.cidh.org/basicos/
basic16.htm> (23 August 2004) art 23.
[66] See Prudence E Taylor, ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law?’ (1998) 10 Georgetown International Environmental Law Review 309, 359.
[67] Announced at a side event organised by the Center for International Environmental Law at the 9th Conference of the Parties to the UNFCCC in Milan Italy on December 10, 2003. The ICC intends to argue that the US failure to take serious steps to reduce its GHG emissions amounts to a violation of the human rights guaranteed the Inuit under the IAHR regime.
[68] See Jack Donnelly, International Human Right (2nd ed, 1998) 1. The author suggests that human rights are generally intended to protect individuals from actions of their own governments.
[69] It should be noted that the European Court of Human Rights has come to the conclusion in the criminal law context that states may owe obligations to protect the human rights of individuals who are not their own citizens. For a more detailed discussion, see R Currie, ‘Human Rights and International Mutual Legal Assistance: Resolving the Tension’ (2000) 11 Criminal Law Forum 143, 151-152.
[70] For a detailed overview of the IAHR process, see Inara K Scott, ‘The Inter-American System of Human Rights: An effective Means of Environmental Protection?’ (2000) 19 Virginia Environmental Law Journal 197, 203. See also J Taillant, ‘Environmental Advocacy and the Inter-American Human Rights System’ in R Picolotti et al (eds), Linking Human Rights and the Environment (2003) 118.
[71] Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 109th Sess, December 2000, (entered into force 1 May, 2001). Available online at Inter-American Commission on Human Rights <http://www.cidh.org/basicos/
basic16.htm> (23 August, 2004) arts 8, 32 and 33.
[72] Ibid art 30.
[73] Ibid art 37.
[74] Ibid art 31.
[75] The American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123, 9 ILM 673 (entered into force 18 July 1978) art 25(1) which provides that ‘Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognised by the constitution or laws of the state concerned.’
[76] Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 109th Sess, December 2000 (entered into force 1 May, 2001). Available online at Inter-American Commission on Human Rights <http://www.cidh.org/basicos/
basic16.htm> (23 August 2004) arts 42(1) and 43.
[77] The American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123, 9 ILM 673 (entered into force 18 July 1978) art 45.
[78] Rules of Procedure of the Inter-American Commission on Human Rights, above n 76, art 50.
[79] For a detailed discussion on the standard of proof required in proceedings before the IAHR Court, see Velasquez Rodriguez Case, Inter-American Court on Human Rights, (ser C) No 4 (1988) reprinted in (1989) ILM 291, paras 128-138.
[80] See Report on the Situation of Human Rights in Ecuador (Ecuador Report), (24 April 1997), reprinted in IACHR OEA/ser L /V./II. 96, doc 10 rev 1, 81- 83 and 90.
[81] Philippe Sands, Principles of International Environmental Law I (1995) 229. See also general discussions on freedom of association as an additional human right in Dinah Shelton, ‘What Happened in Rio to Human Rights?’ (1992) 3 Year Book of International Environmental Law 75.
[82] Charter of the Organisation of American States (entered into force 13 December 1951) reprinted in Weston et al, above n 17, 50.
[83] The American Declaration of the Rights and Duties of Man, adopted at the 9th International Conference of American States, available online at The Inter-American Commission on Human Rights<http://www.cidh.org/Basicos/basic2.htm> (31 August 2004). See also Weston et al, above n 17, 293.
[84] The American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123, 9 ILM 673 (entered into force 18 July 1978).
[85] 1988 Additional Protocol to the American Convention on Human Rights, OAS 69 (1988), signed 17 November 1988 (entered into force 1989) 28 ILM 156 art 11. For a more comprehensive account and discussion of these efforts see M Dejeant-Pons and M Pallemaerts, Human Rights and the Environment (2002) 118 art 11.
[86] Draft Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on 26 February 1997. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser/L/V/II, 90 Doc 9 rev 1.
[87] See: Status of the Yanomami Indians, available online at the American University College of Law <http://www.wcl.american.edu/pub/humright/digest/Inter-American/english/annual/
1984_85/res1285.html> (19 August 2004). The court clearly recognised in this case that environmental harm amounted to a threat to the claimants’ right to life, liberty and security of the person. The Court stopped short, however, of recognising an independent right to a healthy environment, and instead focussed on the link between the environmental harm caused by the road construction and the resulting threat to the claimants’ right to life, liberty and security of the person. On the facts, the threat to the claimants’ right to life was so apparent, that no consideration of a separate right to a healthy environment was needed to deal with the claim.
[88] The Ecuador Report (24 April 1997) reprinted in IACHR OEA/ser L /V./II. 96, doc 10 rev 1.
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] See Scott, above n 70. See also John Alan Cohan, ‘Environmental Rights of Indigenous Peoples under the Alien Tort Claims Act, the Public Trust Doctrine and Corporate Ethics, and Environmental Dispute Resolution’ (2001) 20 ULCA J Environmental Law and Policy 133, and S J Anaya, ‘Indigenous Rights Norms in Contemporary International Law’ (1991) 8(2) Arizona Journal of International Comparative Law 1, 24.
[93] For an interpretation of the American Declaration of the Rights and Duties of Man within the framework of Article 64 of the American Convention on Human Rights see Inter-American Court of Human Rights, above n 39. See also Scott, above n 70, 222 for a detailed discussion of the Courts willingness to consider the substance of human rights to evolve without the need for amendments to the instruments that make up the substantive base for the IAHR regime.
[94] Ibid.
[95] The Mayagna (Sumo) Awas Tingni Community Case (Tingni Community Case) Case No 11.557, IACHR 79 (2001) available online at the University of Minnesota <http://www.umn.edu/humanrts/iachr/AwasTingnicase.html> (19 August 2004). See generally S J Anaya, ‘The Awas Tingni Petition to the Inter-American Commission on Human Rights: Indigenous Lands, Loggers, and Government Neglect in Nicaragua’ (1998) 9 St Thomas Law Review 157.
[96] Jennifer A Amiott, ‘Environment, Equality, and Indigenous Peoples’Land Rights in the Inter-American Human Rights System: Mayagna (Sumo) Indigenous Community of Awas Tingni v Nicaragua’ (2002) 32(3) Environmental Law 873, 877.
[97] The American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS, 123. Reprinted in 9 ILM 673 (entered into force 18 July 1978) arts 29 and 30.
[98] See Scott, above n 70, 211. The author comes to the conclusion that ‘environmental degradation that directly threatens the health of a community should be adjudicated as a violation of the right to life’. See also the author’s comment on the expansive interpretation of the right to life by the Commission and the Court on the same page.
[99] See IPPC Third Assessment Reports above n 2. For the purposes of this analysis, the 2001 report is an accurate reflection of the state of knowledge about climate change, the human impact on it, and the likely future changes to the global climate resulting from the human influence on the climate system.
[100] See Watson et al, above n 2, 276 for a summary of IPCC findings with respect to Polar Regions and Small Island States that the life, liberty and security of the person of people living in these regions will be affected by climate change.
[101] Especially given that the choices made today by states regarding the level of effort they are willing to make to reduce GHG emissions will determine the extent of climate change for decades to come. For a discussion of a similar line of reasoning, see the Tingni Community Case, above n 95.
[102] See for example Watson et al, above n 2, 276. Based on the assessment report it appears that the level of certainty is sufficiently high to meet a balance of probability test.
[103] Declaration on the Right to Development, G.A.Res.41/128, UN GAOR, annex 41 UNDocA/41/53 (entered into force 4 December 1986) art 1.
[104] Ibid art 3.
[105] The American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS, 123. Reprinted in 9 ILM 673 (entered into force 18 July 1978) art 26.
[106] The Ecuador Report (24 April 1997) reprinted in IACHR OEA/ser L /V./II. 96, doc 10 rev 1, 81-83 and 90.
[107] See Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, United Nations Framework Convention on Climate Change, available online at United Nations Framework Convention on Climate Change <http://unfccc.int/resource/docs/a/
18p2a01.pdf> (19 August 2004).
[108] And a corresponding limit on CO2 concentrations in the atmosphere of approximately 550 parts per million (ppm).
[109] See IPCC Third Assessment Reports, above n 2, and German Advisory Council on Global Change, Climate Protection Strategies for the 21st Century, Kyoto and Beyond, available online at German Advisory Council on Global Change <http://www.wbgu.de/wbgu_sn2003
_presse_engl.html > (19 August 2004).
[110] For a general discussion on the links between indigenous rights and the environment, see, for example: Lawrence Watters, ‘Indigenous Peoples and the Environment: Convergence from a Nordic Perspective’ (2001) 20 University of California Los Angeles Environmental Law and Policy 237; Cohan, above n 92: Anaya, above n 92.
[111] Convention Concerning Indigenous and Tribal Peoples in Independent Countries ILO Convention 169, (entered into force 5 September 1991), available online at the University of Minnesota <http://www1.umn.edu/humanrts/instree/r1citp.htm> (31 August 2004).
[112] See Cohan, above n 92, 133 and 136.
[113] Draft Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights on 26 February 1997. Reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser/L/V/II, 90 Doc 9 rev 1.
[114] For a detailed assessment and review of the case see Amiott, above n 96.
[115] See Tingni Community Case, above n 95, para 173.
[116] See S Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment under International Law’ (2002) 16 Tulane Environmental Law Journal 65; M Burger, ‘Bi-Polar and Polycentric Approaches to Human Rights and the Environment’ (2003) 28 Columbia Journal of Environmental Law 371. See also R Picolotti et al (eds), Linking Human Rights and the Environment (2003).
[117] Declaration of the United Nations Conference on the Human Environment, UN GAOR, UN Doc A/CONF.48/14/Rev.1 (1972). Available online at United Nations Environment Programme < http://www.unep.org/Documents/Default.asp?DocumentID=97&Article
ID=1503> (1 September 2004).
[118] Ibid.
[119] United Nations Conference on Environment and Development (Rio de Janeiro 3-14 June 1992) ACONF 151/26 vol 1 available online at the United Nations < http://www.un.org/documents/ ga/conf151/aconf15126-1annex1.htm> (1 September 2004).
[120] For an overview of the evolution of human rights to a clean environment under these three soft law declarations, see Watters, above n 110, 266. Watters (p 275) summarises the principles of human rights that are particularly relevant to environmental protection as follows: 1. The right to self determination with sovereignty over natural resources, 2. The right to health including the right to freedom from health threatening environmental degradation, 3. The right to information about the environment, 4. The right to participate in environmental decision-making, 5. The right to free association, 6. The right to preservation and the use of the environment for cultural purposes, and 7. The right to freedom from discrimination and the right of equal protection of the law.
[121] For example the San Salvador in the Protocol 1988 Additional Protocol to the American Convention on Human Rights, OAS 69 (1988), signed 17 November 1988 (entered into force 1989), 28 ILM 156 makes reference to the right to health and the right to a healthy environment in articles 10 and 11.
[122] For an assessment of the Draft Declaration, see N A F Popovic, ‘In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment’ (1996) 27 Columbia Human Rights Law Review 487, and N A F Popovic, ‘Human Rights, Environment and Community: A Workshop: Conference held at University at Buffalo Law School’ (1998) 7 Buffalo Environmental Law Journal 239.
[123] African Charter on Human Rights and Peoples Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982) (entered into force 21 October 1986).
[124] Declaration of the United Nations Conference on the Human Environment, UN GAOR, UN Doc A/CONF.48/14/Rev 1 (1972). Available online at United Nations Environment Programme < http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID
=1503> (1 September 2004). This Declaration was developed by an international group of experts convened at the request of the United Nations. It is the first global effort to establish the substance of a human right to a healthy environment.
[125] M Dejeant-Pons and M Pallemaerts above n 26. The authors list and reproduce literally hundreds of provisions that all make some reference to the recognition that there is a link between the rights and needs of individuals and communities on the one hand, and a certain level of environmental protection on the other. Beyond those referred here, the instruments referenced range from specific international environmental agreements to various efforts to build upon the 1994 Draft Declaration of Principles on Human Rights and the Environment.
[126] See N A F Popovic, ‘Human Rights, Environment and Community: A Workshop: Conference held at University of Buffalo Law School’ above n 122, 245 The author identifies that the Draft Declaration does in fact have legal status in that it has been recognised by the UN, and cited by scholars and judges.
[127] Declaration of the United Nations Conference on the Human Environment, UN GAOR, UN Doc A/CONF.48/14/Rev 1 (1972). Available online at United Nations Environment Programme < http://www.unep.org/Documents/Default.asp?DocumentID=97&ArticleID=
1503> (1 September 2004) art 4.
[128] For a more detailed discussion on the right to a healthy environment in an intergenerational context, see G F Maggio, ‘Inter/Intra-generational Equity: Current Applications under International Law for Promoting the Sustainable Development of Natural Resources’ (1997) 4 Buffalo Environmental Law Journal 161.
[129] For example, is it enough to demonstrate that there is dramatic risk of loss of biodiversity, with a predicted average risk of extinction of 35%? See discussions in Chris D Thomas et al, ‘Extinction Risk from Climate Change’ (2004) 427 Nature 145.
[130] For a more detailed discussion of the Kyoto process and the role of the United States in that process see M Doelle, ‘From Kyoto To Marrakech; A Long Walk Through The Desert: Mirage Or Oasis’ (2002) 25(1) Dalhousie Law Journal 112.
[131] See the discussion on causation in P Barton, ‘State Responsibility and Climate Change: Could Canada be Liable to Small Island States?’ (2002) 11 Dalhousie Journal of Law and Society 65, 72.
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