Title of the Dissertation

Human Rights-Based Approach to Climate Change

Through Existing Human Rights Regimes

Module Supervisor: Dr. Cliff Snaith

Module Name: International Law DissertationModule Code:LLPP30N

Student Number:08036864

Dissertation Submitted for Completion of LLM in International Law.

Academic Year: 2008-2009Department of Law, Governance & International Relations

London Metropolitan UniversityLondon

Acknowledgements

The realisation of the linkage between climate change and human rights has not been achieved as an individual pursuit without valuable insight and input from others. Many persons have contributed their time and expertise to this dissertation, all of which are gratefully acknowledged.

I am especially indebted to Dr Cliff Snaith, my distinguished supervisor and course leader for LLM International Law at London Metropolitan University. His lectures on “international environmental law; does it ever work, can it ever work” and “enforcement through carbon trading” first triggered me to develop my interest on climate change issues. He literally opened up a new and exciting world for me. Subsequent discussion with him inspired me to research on climate change especially on human dimensions of climate change. This dissertation “Human Rights-Based Approach to Climate Change Through Existing Human Rights Regimes” is the result of that research.

Last, but not least, I would like to thank my parents, my brothers, my wife and little son for their help and support as I toiled my way to the completion of this dissertation.

AbstractClimate change is considered to be a critical global challenge and recent events have demonstrated the world’s growing vulnerability to climate change. The impacts of climate change range from affecting agriculture to

further endangering food security, to rising sea-levels and the accelerated erosion of coastal zones, increasing intensity of natural disasters, species extinction and the spread of vector-borne diseases. 1

However over the past two decades climate change has only been viewed as a scientific projection. The international community has largely failed to translate the important and hard-won scientific consensus into an equally compelling vision of how the consequences of global warming are being felt by people and communities around the world. 2

This paper will argue that the impacts of climate change are now threatening basic human rights such as the right to life, to food, to shelter, to water and to health and that although economical or scientific perspectives of climate change remain necessary, it is also essential that we focus on the people who are most immediately affected by climate change and most in need of support. Human rights dimension of climate change is now drawing attention of international communities. On March 25, 2009, the United Nations Human Rights Council adopted resolution 10/4, unequivocally recognizing that “climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing….”3

Recognising the effect of climate change on the enjoyment of human rights, this paper will try to find out answers of some key questions; (a) how is the impact of climate change a human rights issue? ; (b) how is the concept of ‘human rights-based approach to climate change’ developing in human rights arena? ; (c) should existing human right law be expanded to encompass climate change impacts? ; (d) what human rights are threatened by the impacts of climate change? ; (e) how will human rights courts respond to the violation of human rights caused by the impact of climate change? ; (f) and what are the advantages of human rights-based approach to climate?This paper will argue that international human rights regimes is potentially well placed to address and highlight some of these human dimensions of climate change from the human rights perspective. It will also assert that the application of human rights principles and norms will bring a range of benefits to international and national efforts to respond to the impacts of climate change on vulnerable people. Table of Contents 1 An Overview of Climate Change by United Nations Department of Economic and Social Affairs. Available at: http://www.un.org/esa/socdev/unpfii/documents/Climate_change_overview.doc2 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review , vol. 33, no.2 page 451.3 Resolution 10/4 (March 25, 2009) of the United Nations Human Rights Council. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/resolution10_4.doc

Page No

Acknowledgement iAbstract ii

Introduction: 1

Chapter 1: Overview of Climate Change and its Effects 4

1.1 What is Climate Change? 4 1.2 Effects of Climate Change on Atmosphere 61.3 Effects of Climate Change on Mankind 7 1.3.1 Agricultural Productivity Would Be Reduced 7 1.3.2 Heightened Water Insecurity 7 1.3.3 Increased Exposure to Coastal Flooding and Extreme Weather Events 8 1.3.4 The Collapse of Ecosystems 9

Chapter 2: Human Rights-Based Approach to Climate Change 10

2.1 Whether the Impacts of Climate Change are Severe Enough to Become a Human Rights Issue? 102.2 History and Development of the Linkage Between Climate Change and Human Rights 122.3 Positioning Climate Change within the Framework of International Human Rights Regime 17 2.3.1 Historical Development and Theories of Human Rights 17 2.3.1.1 Classification of Human Rights in International Law 19

2.3.2 Human Rights and The Environment 20 2.3.3 Development and Current Status of the Right to Healthy Environment 21 2.3.4 International and Regional Court’s Inclination to the Right to Healthy Environment 25 2.3.5 Can the Existing Human Rights be Extended to Include Climate Change Protection? 28

Chapter 3: Human Rights Affected by Climate Change 29

3.1 Right to Life 3.1.1 Legal Basis of the Right to Life in International Human Rights Law 29 3.1.2 Current and Projected Impacts of Climate Change on the Right to Life 30

3.2 Right to Food 3.2.1 Legal Basis of the Right to Food in International Human Rights Law 31 3.2.2 Current and Projected Impacts of Climate Change on the Right to Food 32

3.3 Right to Water 3.3.1 Legal Basis of the Right to Water in International Human Rights Law 33 3.3.2 Current and Projected Impacts of Climate Change on the Right to Water 34

3.4 Right to Health 3.4.1 Legal Basis of the Right to Health in International Human Rights Law 35 3.4.2 Current and Projected Impacts of Climate Change on the Right to Health 36

3.5 Right to Development 3.5.1 Legal Basis of the Right to Development in International Human Rights Law 36

3.5.2 Current and Projected Impacts of Climate Change on the Right to Development 37

3.6 Right to Property 3.6.1 Legal Basis of the Right to Property in International Human Rights Law 38 3.6.2 Current and Projected Impacts of Climate Change on the Right to Property 39

3.7 Right of Indigenous People 3.7.1 Legal Basis of the Right of indigenous people in International Human Rights Law 39 3.7.2 Current and Projected Impacts of Climate Change on the Right of indigenous people 41 3.8 Climate Change Refugees 42

Chapter-4: Direct and Indirect Endorsement of Human Rights-Based Approach to Climate Change in International Frameworks and Regional Human Rights Courts

4.1 The United Nations Framework Convention on Climate Change (UNFCCC) 444.2 The Kyoto Protocol 46 4.3 The International Court of Justice 47 4.4 European Court of Human Rights 484.5 Inter-American Commission and Court of Human Rights 514.6 African Commission of Human and Peoples' Rights 524.7 Propensity of National Courts to Recognise Human Rights

Approach to Climate Change 54 4.8 Possible Effective Role of the United Nations in Protecting Human Rights Threatened by the Effects of Climate Change 56

Chapter 5: Advantages of Human Rights-Based Approaches to Climate Change 59

5.1 Adaptive Measures are humane, Fair and Equal 59

5.2 Encouraging International Co-operation 61

5.3 Pathway for International Assistance 63

5.4 Recognition of Procedural Human Rights 64

5.5 Recognition of the Right to Self-Determination 66

5.6 Reformulation of Existing Human Rights 67

5.7 Vocalization of Affected People’s Concern 67

Chapter 6: Criticisms of Human Rights-Based Approach to Climate Change and Its Response

6.1 Problem of Subjective Valuation of Some Rights Over Others 68 6.2 Impractical and Unwise Approach 696.3 Anthropocentric Attitude to Environmental Problems 706.4 Undermining UNFCCC and IPCC 706.5 Uncertainty of Post-Kyoto Agreement 71 6.6 Impairing Serious Human Rights Issues 72 Chapter 7: Conclusion 73

Bibliography: Textbooks 74Journals and Articles 76Online Sources 82 International Official Reports Related to Climate Change 88Human Rights Instruments, Conventions and Declarations of the United Nations and other International and Regional Organisations 90List of International and Regional Cases 93

Introduction:

Climate change has been identified as one of the major crisis in the 21st century.4It poses an enormous global challenge and will have significant impacts on mankind.5 Even conservative forecasters predict that climate change will have dramatic effects to environment, economies, and social condition of the people all over the world.6

Although climate change is already understood as an environmental problem, and increasingly as an economic one,7 consideration of the human rights impact of climate change has generally been minimal.8

4 Margot Wallstrom. (2003) Meeting the Long Term Challenge of Global Warming: A European Perspective, in David Michel,( ed.) Climate Policy for the 21st Century: Meeting the Long-term Challenge of Global Warming. Center For Transatlantic Relations, Johns Hopkins University, Washington, D.C. Page 17-25. 36-47.5 ‘Climate Change Context – International and Domestic’ in Native Title Report ( 2008 ) Australian Human Rights Commission. Chapter four, Page-91. Available at: http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf6 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 231.7 The last two major reports released on climate change, were largely environmental and economic. First, The Arctic Climate Impact Assessment Report was released in 2004 by the Arctic Council and the International Arctic Science Committee (IASC), to evaluate and synthesize knowledge on climate variability, climate change, and increased ultraviolet radiation and their consequences. Report available at http://www.acia.uaf.edu/pages/scientific.html and Second, Nicholas Stern Report on Economic Impacts on climate change released by the United Kingdom in 2006 was largely focused on financial impact of climate change. Report available at: http://www.hm- treasury.gov.uk/stern_review_report.htm8 Climate Change and Human Rights: A Rough Guide. (2008) Published by International Council on Human Rights Policy, Versoix, Switzerland. Page 12-14. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/136_report.pdf

The particular question of whether climate change can be addressed as a human rights issue has only recently drawn attention.9

Now human rights scholars have agreed that climate change directly threaten fundamental human rights such as rights to life, to food, to health, to water and to shelter.10 Impacts of climate change also raises important challenges related to equality, non-discrimination, access to information, access to justice and other core principles of human rights.11 Climate change threatens the human rights of all people living in the affected communities.12

Human rights-based approach to climate change helps us to understand that climate change is not solely an environmental, technical or economical issue, but an issue of global social justice which requires social response from human rights perspective.13

9 Mary Robinson. (2006) ‘Climate Change and Justice’. Former Irish President and United Nations High Commissioner for Human Rights Ms Mary Robinson at the Barbara Ward Lecture series, at Chatham House in London (11 December 2006) argued that “we can no longer think of climate change as an issue where we the rich give charity to the poor to help them cope. Rather, this has now become an issue of global injustice that will need a radically different approach.” In her lecture she advocated human rights-based approach to climate change .Available at:http://www.realizingrights.org/pdf/Barbara_Ward_Lecture_12-11-06_FINAL.pdf10 John Von Doussa, Allison Corkery, Renee Chartres.(2007) ‘ Human Rights and Climate Change.’ Australian International Law Journal vol.14, page161.11 Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High Commissioner for Human Rights. Available at:http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opendocument12 Sara C. Aminzadeh.(2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 231.13 Dan Chong and Simon Nicholson.( 2008) ‘From Knowledge to Action: Applying a Rights-Based Approach to Global Climate Change.’ International Studies Association. Page-1-17Available at: http://www.allacademic.com/one/prol/prol01/index.php?cmd=prol01_search&offset=0&limit=5&multi_search_search_mode=publication&multi_search_publication_fulltext_mod=fulltext&textfield_submit=true&search_module=multi_search&search=Search&search_field=title_idx&fulltext_search=From+Knowledge+to+Action%3A+Applying+a+Rights-Based+Approach+to+Global+Climate+Change

Human rights approach persuades us to refocus our attention more directly to the vulnerable communities and to the effects of climate change on their lives. By holding governments and other duty-bearers accountable to reducing the vulnerability of the people to climate change and assisting them in adapting to the consequences, human rights approach encourages to introduce an accountability framework which is an important foundation for the promotion and protection of human rights. Human rights approach persuades to take the views of those who will be disproportionately affected by climate change such as the poor, vulnerable and marginalized communities, into account in responses devised to address the causes and consequences of climate change. 14

This dissertation aims to explore issues related to human rights-based approach to climate change and argue that human rights principles remain important and essential to effectively cope with the impacts of climate change.

This dissertation is divided into seven chapters.

Chapter one will provide an overview of climate change and its impacts on the world. It will show that global temperature is increasing which is affecting agricultural productivity and water security and causing extreme weather event such as cyclone, floods and droughts frequently.

Chapter two will discuss various aspects of human rights issues related to climate change. First, it will find out whether impacts of climate change are severe enough to become a human rights issue? Second, it will provide a brief overview of the history and development of the linkages between climate change and human rights. Third, it will discuss about the existing human rights regimes and will argue that existing human rights regimes can be expanded to encompass climate change impacts on human rights.

Chapter three will look at how the human rights enshrined in the key international human rights instruments are threatened by the impacts of climate change.

14 Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High Commissioner for Human Rights. Available at:http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opendocument

Chapter four will explore the position and acceptance of ‘human rights-based approach to climate change’ in international framework including international and regional human rights instruments and human rights courts.

Chapter five will explain advantages of human rights-based approach to climate change.

Chapter six will examine some possible criticisms of human rights-based approach to climate change and provide response to these.

Finally chapter seven will draw conclusion on human rights-based approach to climate change.

Chapter 1: Overview of Climate Change and its Effects.

Climate change is the greatest environmental threat for humanity.15

The Intergovernmental Panel on Climate Change 16 (IPCC) reported in 2007 in its fourth assessment report 17 on climate change that the impacts of climate change are already being felt, particularly in the

15 ‘Climate Change 2007: Synthesis Report’. (2007) A Report by Intergovernmental Panel on Climate Change. Available at: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf 16 The Intergovernmental Panel of Climate Change (IPCC) is the leading body for the assessment of climate change, established in 1988 by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) to provide the world with a clear scientific view on the current state of climate change and its potential environmental and socio-economic consequences. It reviews and assesses the most recent scientific, technical and socio-economic information produced worldwide relevant to the understanding of climate change.17 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) 2007 (AR4) Available at:http://www.ipcc.ch/publications_and_data/publications_and_data_reports.htm#1

poorest communities all over the world who have in fact the least historical responsibility for causing climate change.18

1.1 What is Climate Change?

Article 1 (2) of the United Nations Framework Convention on Climate Change 1992 (UNFCCC ) 19 defines climate change as “a change of climate which is attributed directly or indirectly to human activity, that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.” 20

This change in climate21occurs because of the release of greenhouse gases over a period of time. This is also known as greenhouse gas emissions or carbon emissions. There are six main greenhouse gases: Carbon dioxide, Methane, Nitrous oxide, Hydrofluorocarbons, Perfluorocarbons, Sulphur hexafluoride. 22

Climate change is the consequences of both natural and human causes. Naturally the Earth's climate changes as a result of interactions between the ocean and the atmosphere, variations in the Earth's orbit, fluctuations in energy received from the sun and volcanic eruptions. On the other hand the main human influence on global

18 ‘Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow.’ (2008) A Briefing Paper by Greenpeace. Page 2 Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.pdf19 The United Nations Framework Convention on Climate Change (UNFCCC) was adopted at the United Nations Conference on Environment and Development (UNCED) (which is also known as the Earth Summit) held in Rio de Janeiro from 3 to 14 June 1992. The treaty is aimed at stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. At the UN Summit in Rio de Janeiro in 1992, 154 countries signed the UNFCCC. Today, 192 countries have ratified the convention. It entered into force on March 21, 1994.20 Article 1(2) of the United Nations Framework Convention on Climate Change, 1992. Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf21 Climate refers to the average weather experienced in a region over a long period, typically at least 30 years. This includes temperature, wind and rainfall patterns. The climate of the Earth is not static, and has changed many times in the past in response to a variety of natural causes. Source: UK Climate Impacts Programme. Available at : http://www.ukcip.org.uk/index.php?id=19&option=com_content&task=view 22 ‘Climate Change Context – International and Domestic’ in Native Title Report ( 2008 ). Australian Human Rights Commission. Chapter four, Page-93 Available at: http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf

climate is likely to be emissions of greenhouse gases such as carbon dioxide (CO2) and methane.23 This is because people are continuing to use fossil fuels for electricity and power to provide heating, transportation, and for industry which are releasing a large amount of carbon dioxide to atmosphere. The Intergovernmental Panel on Climate Change (IPCC) has asserted that because of human activities global emissions of greenhouse gases increased by 70 percent between 1970 and 2004. 24

At present, about 6.5 billion tonnes of CO2 is emitted globally each year, mostly through burning coal, oil and gas for energy.25

However, the greenhouse effect is a natural phenomenon without which life on Earth would be impossible, as the Earth would be 30°C cooler. The Earth is kept warm by the greenhouse effect. Certain gases in the atmosphere (known as greenhouse gases) absorb energy that is radiated from the Earth’s surface, and so warm the atmosphere. However, our modern lifestyles have resulted in us releasing large amounts of greenhouse gases – like carbon dioxide and methane – into the atmosphere, enhancing the greenhouse effect and so pushing up temperatures globally. 26

1. 2 Effects of Climate Change on Atmosphere

The scientific consensus is now clear. We are already beginning to feel the effects of climate change. 2005 was the hottest year on record. Of the 21 hottest years ever measured since they started keeping records in 1860, 20 have occurred in last 25 years. 27

NASA‘s top climate scientists asserts that “we are nearing a ―tipping point. If emissions of GHGs continue at their current pace for even just another decade, we may reach point of no return—a point at which

23 ‘Understanding Climate Change.’ UK Climate Impacts Programme. Available athttp://www.ukcip.org.uk/index.php?option=com_content&task=view&id=73&Itemid=18624 ‘Climate Change Context – International and Domestic’ in Native Title Report ( 2008 ). Australian Human Rights Commission. Chapter four, Page-93 Available at: http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf25 Spencer Weart. (2009) The Discovery of Global Warming. Available at: http://www.physicists.net/history/climate/26 Dr Emily Shuckburgh. (2008) ‘Climate Change – Global Issues’ Cambridge University.Page -7, Available at: http://www.atm.damtp.cam.ac.uk/shuckburgh/general/Climate_Press_Pack.doc27 Amy Sinden. (2007) ‘Climate Change and Human Rights.’ Journal of Land Resources and Environmental Law vol.27, no 2, page 255.

feedback loops have been triggered and avoiding ―devastating consequences becomes impossible.” 28

The Intergovernmental Panel of Climate Change (IPCC) in its Fourth Assessment Report has provided further confirmation that climate change will have serious impacts on atmosphere. 29 It reports that

“The global average surface temperature has increased, especially since about 1950. The updated 100-year trend (1906–2005) of 0.748C + 0.188C is larger than the 100-year warming trend at the time of the (1901– 2000) of 0.68C + 0.28C due to additional warm years. The total temperature increase from 1850–1899 to 2001–2005 is 0.768C + 0.198C. The rate of warming averaged over the last 50 years (0.138C + 0.038C per decade) is nearly twice that for the last 100 years.”30 The IPCC also projects that temperatures will continue to rise.

The IPCC warns that if the world continues a fossil fuel-intensive energy path during the 21st century, current concentrations of greenhouse gases could be more than quadruple by the year 2100. As a result global-average surface temperature will increase 4.0º Celsius (7.2º Fahrenheit) by the end of the 21st century.31

1.3 Effects of Climate Change on Mankind

If climate change continues on present course the coming decades will bring higher temperature, increasing drought and severe storms. Tropical diseases will spread rapidly and massive human dislocation would be a common feature as low-lying coastal areas around the globe would be flooded by rising seas. 32

28 James Hansen, Makiko Sato, Reto Ruedy, Ken Lo. (2007) ‘Temperature Analysis.’ Nasa’s top climate scientists conducted a joint research in 2007 in which they observed that global temperature was reaching dangerous level and commented that ‘we are nearing a tipping point’. Available at:http://www.columbia.edu/~jeh1/mailings/2007/20071210_GISTEMP.pdf29 Simon Caney. (2008) ‘Human Rights, Climate Change, and Discounting’. Environmental Politics vol. 17, no. 4, page 536.30 Climate Change 2007: Synthesis Report. (2007) The Intergovernmental Panel on Climate Change (IPCC). Page 30. Available at:http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf31 James B. Martin-Schramm. (2008) ‘Human Rights and Climate Change.’ Available at:http://www.elca.org/What-We-Believe/Social-Issues/Journal-of-Lutheran-Ethics/Issues/February-2009/8-Human-Rights-and-Climate-Change.aspx#_edn8

Main effects of climate change on earth would be the following;

1.3.1 Agricultural Productivity Would Be Reduced: Climate change is likely to have a significant impact on agricultural productivity because agriculture is highly sensitive to climate variability and extreme weather events such as droughts, floods and severe storms. Although higher minimum temperatures may be beneficial to some crops, it will generally be detrimental to numerous crops and their productivity all over the world. Droughts, floods and severe storms will also reduce agricultural productivity.33

By reducing agricultural productivity climate change could leave an additional 600 million people facing acute malnutrition by the 2080s over and above the level in a no-climate change scenario.34

1.3.2 Heightened Water Insecurity: Scientists predict that exceeding the 2°C threshold of temperature will fundamentally change the distribution of the world’s water resources.35 Many semi-arid and arid areas such as the Mediterranean Basin, western USA, southern Africa and northeastern Brazil are particularly exposed to the impacts of climate change and are projected to suffer a decrease of water resources due to climate change.36

Because of climate change water supplies stored in glaciers and snow cover are projected to decline in the course of the century, thus reducing water availability during warm and dry periods in regions supplied by melt water from major mountain ranges, where more than one-sixth of the world’s populations currently live. 37

32 Amy Sinden. (2007) ‘Climate Change and Human Rights.’ Journal of Land Resources and Environmental Law vol.27, no 2, page 25633 Assessment Reports on Agriculture and Food Security of intergovernmental panel on climate change (IPCC). (2007)Available at: http://www.ipcc.ch/ipccreports/tar/wg2/index.php?idp=3234 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided World. Published by the United Nations Development Programme. New York, USA.Page 27. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf35 Ibid-page 2736 Bates, B.C., Z.W. Kundzewicz, S. Wu and J.P. Palutikof, Eds., 2008: Climate Change and Water. Technical Paper of the Intergovernmental Panel on Climate Change, IPCC Secretariat, Geneva. Page -3. Available at:http://www.ipcc.ch/pdf/technical-papers/climate-change-water-en.pdf37 Ibid-page 3.

By 2080, climate change could increase the number of people facing water scarcity around the world by 1.8 billion. 38

1.3.3 Increased Exposure to Coastal Flooding and Extreme Weather Events: Scientific evidences clearly show that the climate is warming which is causing more extreme weather events such as drought, flooding, cyclones, precipitation variability, storms, snow, storm surges, temperature variability, and wildfires. On average around 262 million people were affected each year between 2000 and 2004 by violent tropical cyclones, droughts and floods. Over 98 percent of them were living in developing countries.39

Scientists of IPCC have proved that sea level is rising because of climate change. From 1961 to 2003, the average rate of sea level rise was 1.8 ± 0.5 mm yr–1.40 Rising sea levels would increase the number of people experiencing coastal flooding by between 180 million and 230 million. This would cause the widespread displacement of people in countries such as Bangladesh, Maldives, Tuvalu Island, Marshall Islands and other low-lying coastal area.. 41

1.3.4 The Collapse of Ecosystems: Scientists predict that the effect of climate change is very likely to change the ecosystems on earth. They claim that if the temperature on earth increases 2°C, 20–30 percent of species would be at ‘high risk’ of extinction. 42

Tropical and boreal forests, deserts and semi-deserts, low-lying islands, arctic regions, mountain systems, wetlands, peatbogs and coastal marshes, and coral reefs would be the most vulnerable ecosystems affected by the climate change.43

38 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided World. Published by the United Nations Development Programme. New York, USA.Page 27. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf39 Ibid-page 30. 40 The Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Available at:http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-chapter5.pdf41 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided World. Published by the United Nations Development Programme. New York, USA.Page 30. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf42 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided World. Published by the United Nations Development Programme. New York, USA.Page 27. Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf

Changes in climatic variables such as rainfall, sunshine, cloud cover, and the frequency of extreme weather events will influence these vulnerable ecosystems. Some ecological systems may not reach a new tranquility for several centuries after the climate achieves a new balance. Some species within such ecosystems may become extinct. 44

Chapter 2: Human Rights-Based Approach to Climate Change

It is now widely accepted that climate change threatens basic human rights such as the right to life, to food, to shelter, to water and to health. These rights are already protected in existing human rights regime.45 So it can be argued that this regime could be used to protect those who are vulnerable to the effects of climate change. 46

43 Joe Buchdahl. (2002) ‘Climate Change’. Atmosphere, Climate & Environment Information Programme, Aric Manchester Metropolitan University, Chester Street, Manchester. UK.Page- 71. Available at: http://www.ace.mmu.ac.uk/Resources/Fact_Sheets/Key_Stage_4/Climate_Change/pdf/Climate_Change.pdf44 Ibid-page 7345 Doyle, Michael and Ann Marie Gardner, (2003) Introduction: Human Rights and International Order in Jean-Marc Coicaud, Michael W. Doyle, and Ann Marie Gardner, (eds.), The Globalization of Human Rights, United Nations University, Tokyo, Japan. Page 89.46 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at: http://climateethics.org/?p=39

Human rights-based approach to climate change can bring the impacts of climate change within the framework of existing human rights obligations47 and pursue national and international communities to give remedies to the affected communities. The following sections will explore all these human rights issues related to climate change

2.1 Whether the Impacts of Climate Change are Severe Enough to Become a Human Rights Issue?

In order to find out the answer of this question, this paper will follow an approach introduced by environmental law scholar Hari M. Osofsky.48

This approach suggests to consider geographic scope, duration and severity of the environmental damage and its impacts on humanity to evaluate whether the effects of climate change constitute a human rights issue. 49

Now if we analyze the effects of climate change, we can see that the geographic scope of climate change is truly global. It is affecting the Arctic, ocean currents and ecosystems, weather systems, agricultural productivity and water security of the whole world, 50

The duration of climate change is extensive. The severity of climate change will depend largely on GHG emissions over the next 50 years. 51

Scientists warn that even if GHG emissions stabilized today, temperatures and sea levels would continue to rise for another century

47 Bridget Lewis. (2008) ‘Climate Change and Human Rights : Perspectives of Environmental and Indigenous Rights.’ Journal of The Australasian Law Teachers Association vol.1, no.1 & 2, page 154 Available at:http://www.alta.edu.au/pdf/JALTA/JALTA%20Volumes/2008%20Vol%201%20No%201&2.pdf48 Hari Osofsky is an associate professor at Washington and Lee University School of Law. She is specialist in environmental law.49 Hari M. Osofsky. (2005) ‘Learning from Environmental Justice: A New Model for International Environmental Rights.’ Stanford Environmental Law Journal vol.24,no1,page 9150 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol.30 page 242 51 Bob Holmes. (2005) ‘Ocean Heat Store Makes Climate Change Inevitable.’ NewScientist. Available at: http://www.newscientist.com/article.ns?id=dn7161

or more because of the time lag in the ocean's response to atmospheric temperature change. 52

Climate change is likely to cause an increase in the severity and frequency of extreme events and weather disasters, including storms, tropical cyclones, and droughts.53

Floods and droughts will increase diarrhoea and cholera. Over 150,000 people are currently estimated to die each year from diarrhoea, malaria, and malnutrition caused by climate change. 54

Increasing intensity and frequency of heat waves, floods, storms, and droughts are projected to lead to more deaths.55 For example Europe’s 2003 heat wave – induced by climate change – resulted in 27,000 extra deaths. 56

Projected climate change is expected to put close to 50 million more people at risk of hunger by 2020, and an additional 132 million people by 2050.57

So from the above analysis it can be argued that the effects of climate change are so global, severe and human that the impacts of climate change can easily be regarded as a human rights issue and existing human rights regime can appropriately encompass the issue of the effects of climate change.

52 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 242.53 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 243.54 Daniel A. Farber.(2008) ‘ The Case for Climate Compensation : Justice for Climate Change Victims in a Complex World.’ Utah Law Review no. 2, 2008. page 377-39755 Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow. (2008) A Briefing Paper by Greenpeace. Page - 4 Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.pdf56 Purple Romero. (2008) ‘Wealthy Nations’ Failure to Mitigate Climate Change Violates Rights in Developing Countries.’ ABS-CBNNEWS. Available at:http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigate-climate-change-violates-rights-developing-57 Nicholas Stern Report on Climate Change. (2006) [Known as Stern Review] Published by the United Kingdom. Available at: http://www.hm-treasury.gov.uk/stern_review_report.htm

2.2 History and Development of the Linkage Between Climate Change and Human Rights.

Though the concept of climate change has been evolved from the early 1800s58 and the earlier discussion of human rights obligations in the context of climate change can be traced to the well-established body of literature connecting human rights and the right to healthy environment, 59 international interest in the linkages between climate change and human rights is a relatively recent phenomenon.60

A group of Small Island states, indigenous people and some non-government organizations first begun to raise the issue of human rights-based approach to climate change. They claim that to date the focus of consequences of climate change have been largely on the economic, trade and security issues. The social and human rights impacts of climate change have rarely drawn attention.61

They argue that when climate change is viewed through a human rights lens, the picture looks very different from the scientific statistics and economic forecasts we generally hear.62

58 The history of the scientific discovery of climate change began in the early 1800s when natural changes in paleoclimate were first suspected and the natural greenhouse effect first quantified. In the late 1800s, scientists first argued that human emissions of greenhouse gases could change the climate, but the calculations were disputed. In the 1950s and 1960s, scientists increasingly thought that human activity could change the climate on a timescale of decades, but were unsure whether the net impact would be to warm or cool the climate. During the 1970s, scientific opinion increasingly favored the warming viewpoint. In the 1980s the consensus position formed that human activity was in the process of warming the climate, leading to the beginning of the modern period of climate change science summarized by the Intergovernmental Panel on Climate Change. Source: Wikipedia. History of climate science. Available at: http://en.wikipedia.org/wiki/History_of_climate_change_science59 Siobh´an McInerney-Lankford .(2009) Climate Change and Human Rights : An Introduction to Legal Issues.’ Harvard Environmental Law Review vol. 33, no.2 page 431-432. 60 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 440. Available at: http://www.law.harvard.edu/students/orgs/elr/vol33_2/Limon.pdf61 John Von Doussa. (2007) ‘Climate Change: Catastrophic Impacts and Human Rights.’ Australian Human Rights Commission. Available at:http://www.humanrights.gov.au/about/media/speeches/speeches_president/2007/20071211_Climate_Change.html62 Ibid.

The human rights lens shows that climate change is threatening the right to life, food, water, shelter and health of the vulnerable communities of the world.63

They argue that it is time to shift the debate onto the victims of the problem — namely individual people and communities around the world who are most affected by climate change. 64

However climate change and human rights were first formally and explicitly linked in December 2005, when an alliance of Inuit from Canada and the United States, led by Sheila Watt-Cloutier, filed a petition with the Inter-American Commission on Human Rights.65

The petition66alleged that the effects of climate change had violated human rights of Inuit people for which the United States is responsible because largely the United States had failed to curb its greenhouse gas emissions.67

The Inuit case68was first to introduce the idea that global climate change is in fact a very human process with demonstrable human cause and effect. Like any other aspect of human interaction, climate change could be placed within a human rights framework of responsibility, accountability, and justice.69 As Mary Robinson, a former UN high commissioner for human rights said during a lecture at Chatham House, London that: “Climate change has already begun to affect the fulfilment of human rights, and our shared human rights

63 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The University of New South Wales Law Journal vol. 31, no. 3, page 954.64 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2 page 440. 65 Ibid-page 441. 66 This Petition was submitted on December 7 2005 to the Inter-American Commission on Human Rights Seeking Relief from Human Rights Violations Resulting from Global Warming Caused by Acts and Omissions of the United States. Available at http://www.inuitcircumpolar.com/files/uploads/icc-files/finalpetitionicc.pdf67 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 441. 68 Although the petition was rejected without prejudice in November 2006, the Commission subsequently invited, in February 2007, the Inuit Alliance together with representatives of the Center for International Environmental Law (CIEL) and Earthjustice to provide testimony on the link between global warming and human rights. [Source: Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 441.]69 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 441-442.

framework entitles and empowers developing countries and impoverished communities to claim protection of these rights.” 70

After the first formal expression of the linkage between climate change and human rights in Inuit case, international communities 71 have gradually began to recognize the impacts of climate change on human rights.

In November 2007, the Mal´e Declaration 72 on the Human Dimension of Global Climate Change explicitly stated that “climate change has clear and immediate implications for the full enjoyment of human rights” and called on the United Nations human rights system to address the issue as a matter of urgency. 73

In December 2007, in Thirteenth Conference of Parties to the United Nations Framework Convention on Climate Change (COP 13) in Bali, Kyung-wha Kang, Deputy U.N. High Commissioner for Human Rights also recognized the relationship between climate change and human rights. She stated that “indeed, climate change poses a direct threat to a wide range of universally recognized human rights, such as the rights to life, food, adequate housing or water. Procedural human rights, including access to information or justice and participation in decision-making processes may also become increasingly relevant in a context of climate change, particularly for those being affected by it. Any strategy to deal with climate change, whether in terms of adaptation or mitigation, must incorporate the consequences for humans, as

70 Mary Robinson. (2006) ‘Climate Change and Justice’. A lecture of Former Irish President and United Nations High Commissioner for Human Rights Ms Mary Robinson at the Barbara Ward Lecture series, at Chatham House in London (11 December 2006) .Available at:http://www.realizingrights.org/pdf/Barbara_Ward_Lecture_12-11-06_FINAL.pdf71 A number of international organizations also began to explore the interface between climate change and human rights, including the International Council on Human Rights Policy (ICHRP), the Organization of American States, Oxfam International, Mary Robinson’s realizing Rights, Kofi Annan’s Global Humanitarian Forum. Source: Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 443.72 In November 2007, the Maldives convened a Small Island States Conference in Mal´e to address the effects and the implications of climate change. This declaration was adopted in this conference on 14 November 2007. This declaration was the first an international agreement on climate change impacts on human rights. This declaration is available at: http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf 73 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 442.

individuals and communities, and the human rights framework is the most effective way to do so.” 74

In 2008, the United Nations Development Programme in its 2007/2008 Human Development Report, argued that climate change represents “a systematic violation of the human rights of the world’s poor and future generations, and a step back from universal values.” 75

On January 15, 2009, the Office of the United Nations High Commissioner for Human Rights (OHCHR) published an analytical study Report on the relationship between climate change and human rights.76 This Report77firmly recognized the linkage between climate change and human rights and stated that observed and projected impacts of climate change will inevitably affect the enjoyment of human rights, safeguarding of human rights should be a key consideration in efforts to address the impact of climate change.

Finally on March 25, 2009, the United Nations Human Rights Council adopted78 resolution 10/4, unequivocally recognizing that “climate change-related impacts have a range of implications, both direct and 74 Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High Commissioner for Human Rights. Available at:http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opendocument75 Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided World. Published by the United Nations Development Programme. New York, USA.Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf76 Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. (2009) report number: A/HRC/10/61-15 January 2009. Available at:http://daccessdds.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement77 This report was submitted pursuant to Human Rights Council resolution 7/23 (March 28, 2008) in which the Office of the United Nations High Commissioner for Human Rights (OHCHR) was requested to conduct a detailed analytical study of the relationship between climate change and human rights, taking into account the views of States and other stakeholders.Written submissions were received from States, intergovernmental organizations, national human rights institutions, non-governmental organizations, and individual experts. OHCHR also organized a one-day open-ended consultation on the relationship between climate change and human rights, held on 22 October 2008 in Geneva. The inputs received during the consultation process have informed the preparation of this report.This report outlined main aspects of the relationship between climate change and human rights. Source:Office of the United Nations High Commissioner for Human Rights.Availableat http://daccessdds.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement

indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence.”79

So from the above discussion, it can be claimed that international scholars, human rights advocates, international organisations and state parties are now recognising the linkage between climate change and human rights and the impacts of climate change on human rights.

Further, following the publication of the OHCHR Report and adoption of resolution 10/4 it can also now be argued beyond any doubt, legal or otherwise, that climate change has serious and widespread implications for the full enjoyment of human rights.80

2.3 Positioning Climate Change within the Framework of International Human Rights Regime

In order to bring the issues of climate change within the framework of international human rights regime, we need to examine how far human rights have evolved to recognise the need for a clean and healthy environment as a precondition for the right to life and other

78 After considering the analytical study report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the relationship between climate change and human rights the United Nations Human Rights Council adopted this resolution 10/4 on March 25, 2009.79 Resolution 10/4 (March 25, 2009) of the United Nations Human Rights Council. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/resolution10_4.doc80 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 447.

established human rights 81 and how the issue of climate change fits within existing human rights jurisprudence. 82

In order to do so, we can begin with an examination of the development of human rights and the recognition of the right to healthy environment to investigate how this area can be expanded to include the issues of climate change. 83

2.3.1 Historical Development and Theories of Human Rights:

Human rights law and its practice are contributing to change the global attitude to humanity. The concept of human rights is a very powerful and a major social force today. Even in the late 18th and 19th Century, it became a crucial implement of social change.84

‘The words “human rights” denote individual rights against oppression, in particular the rights to life, to freedom of thought, religion, speech and assembly, and to a fair system of justice.”85

Human rights have been defined as “basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Calling these guarantees “rights” suggests that they attach to particular individuals who can invoke them”.86 Human rights refer to a wide continuum of value claims ranging from the most justiciable to the most aspirational. They represent both the 'is' and the'ought' of social interaction. 87

81 Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and Comparative Environmental Law, vol.1, no-2, page 182, page (179-216)82 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and indigenous rights. Journal of The Australasian Law Teachers Association vol.1, no.1 & 2, page-155.83 Ibid-Page 155.84 Jan Gorecki. (1987) ‘Human Rights: Explaining the Power of a Moral and Legal Idea’. The American Journal of Jurisprudence vol. 32, page 153 85 Ibid.page15386 Nickel, James. (1987) Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights. Berkeley; University of California Press. Page 561-2.87 B H Weston. (1986) 'Human Rights' Human Rights Quarterly vol.6, page 257, 262.

The idea of human rights law has been developed from the concept of natural rights and this concept has been derived from the doctrine of natural law.88 17th century philosopher John Locke (1632-1704) clarified this issue in his Two Treatises of Civil Government. He explained that individual possess natural rights and natural rights flowed from natural law. 89 In his view, each individual had natural rights to life, liberty and property, and the enjoyment of private rights and happiness. Each individual had to be free from threats to life and liberty.90 These are very important elements of human rights law.

Scholars of legal positivism base their justification of human rights law on the doctrine of positive law.91 To them human rights law is apparently positivist idea because “human rights law finds its sources in the human rights treaties, and in a wide range of other treaties which have been signed by states under the auspices of human rights standard setting and monitoring”.92

However, it is considered that the Universal Declaration of Human Rights (1948) (the declaration) is the foundation of the contemporary doctrine of human rights law. The declaration is actually a list of rights derived from the principles of natural law which form the basis of modern human rights law.

88 The doctrine of natural law has been developed by a number of philosophers. Jurisprudential analysis suggests that Philosopher St Thomas Aquinas (1225-74) in his Summa Theologiae more fully developed the concept of natural law. Natural law has been defined in many ways but “the best description of natural law is that it provides a name for the point of intersection between law and morals. The principal claim of natural law is that what naturally is, ought to be. [ Source: Russell Hittinger. (1994) ‘Natural Law and Virtue : Theories at Cross Purposes’ published in Natural Law Theory Contemporary Essays edited by Robert p George. Clarendon press, Oxford. Page 63 and Raymond Wacks. (2005) Understanding Jurisprudence : an Introduction to Legal Theory. Oxford University Press. Page 15 ]89 The doctrine of natural law provides a sound understanding of principles of human rights law. “This natural law understanding of human rights is connected with a particular account of human dignity. Under this account, the natural human capacities for reason and freedom are fundamental to the dignity of human beings—the dignity that is protected by human rights. The basic good of human nature are the goods of a rational creature—a creature who, unless impaired or prevented from doing so, naturally develops and exercises capacities for deliberation, judgement and choice. [Source: George, Robert P. (2008) ‘Natural Law’. Harvard Journal of Law and Public Policy vol. 31, no. 1, page 171-96. ]90 Raymond Wacks. (2005) Understanding Jurisprudence : an Introduction to Legal Theory. Oxford University Press. Oxford. Page 23-2491 “Positive Law is law made by human persons—in treaties, conventions, courts, parliaments and so on”. [Source: Anthony J Langlois. (2004) ‘The Elusive Ontology of Human Rights’. Global Society vol. 18, no.3, page 245]92 Anthony J Langlois. (2004) ‘The Elusive Ontology of Human Rights’. Global Society vol. 18, no.3, page 245

The rights the declaration articulates form the basis for the major human rights treaties and conventions drafted since 1948. The Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the "European Convention on Human Rights" and "ECHR") (1950), The International Covenant on Civil and Political Rights (1966), The International Covenant on Economic, Social and Cultural Rights (1966), The Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (1984), The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), The Convention on the Rights of the Child and these kinds of all other treaties and conventions found their philosophical aspiration from the Universal Declaration of Human Rights.

Taken together these various declarations, conventions, treaties and covenants comprise the contemporary doctrine of human rights law and incorporate both the belief in the existence of a universally valid moral order and a belief in all human beings’ possession of fundamental and equal moral status, enshrined within the concept of human rights.

2.3.1.1 Classification of Human Rights in International Law

Human rights are considered by some to have evolved in three generations of rights.

The first generation rights 93 of civil and political rights derive from seventeenth and eighteenth century reformism and the political philosophy of liberal individualism and economic laissez-faire. These rights are negative "freedoms from" rather than more positive "rights to." 94

93 Many of these rights are set out in Articles 2-21 of the Universal Declaration and include: the right to life, liberty and security of person; freedom from slavery or involuntary servitude; freedom from torture; the right to a fair and public trial; freedom of thought, conscience and religion; the right to own property and not be arbitrarily deprived of it. They are also the subject of the ICCPR. The core concept is liberty of the individual, which is to be protected against the abuse and misuse of state authority. [Source: Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law? Georgetown International Environmental Law Review vol.10, page 317-318 ]94 Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law? Georgetown International Environmental Law Review vol.10, page 317-318.

The second generation rights of economic, social and cultural rights95 primarily originate in the socialist and human welfare traditions. Conceived of more as positive "rights to" rather than "freedoms from," they require state intervention to ensure equitable distribution and participation in the values prescribed. 96

The third generation of rights is commonly referred to as "solidarity rights." Although still in the process of formation, scholars suggests that third generation rights include: the right to political, economic and cultural self-determination; the right to economic and social development; the right to participate in and benefit from the common heritage of mankind; the right to peace; the right to a healthy environment; and the right to humanitarian relief. Their primary characteristics are that they are essentially collective in dimension and require international cooperation for their achievement.97

2.3.2 Human Rights and The Environment

In any analysis of international human rights issues, the starting point remains the fundamental expressions of human rights as found in the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR). 98

Within these instruments, there is no explicit mention of a human right to a healthy environment. Instead, there are references to rights which have some indirect bearing on a healthy environment, such as: Article 11 of the ICESCR, which recognizes the right of all people to an adequate standard of living and a continuous improvement in living conditions; 99 Article 6 of the ICCPR, which recognizes a universal right

95 Articles 22-27 of the Universal Declaration and the ICESCR contain the primary statements of second generation rights, including: the right to social security, the right to work and to protection against unemployment, the right to a standard of living adequate for health and well-being, and the right to education. They are essentially claims to social equality. 96 Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law? Georgetown International Environmental Law Review vol.10, page 318.97 Ibid-page 318. 98 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 305.

to life; 100 and Article 25 of the UDHR, which recognizes the right of all people to a standard of living adequate for health. 101 However connections between the rights to life and health and the environment have been developed further in more recent Declarations of UN Entities, Conventions and judicial decisions.102

2.3.3 Development and Current Status of the Right to Healthy Environment The main theme of the right to healthy environment is that every human being has a right to live in a healthy environment.

In 1972, Principle one of the Declaration of the United Nations Conference on the Human Environment103 ( known as Stockholm Declaration) was first to pronounce a clear global expression of something close to a human right to a healthy environment.

Principle one 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',

99 Article 11(1) of ICESCR states that "The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions...." Available at: http://www2.ohchr.org/english/law/cescr.htm100 Article 6(1) of ICCPR states that "Every human being has the inherent right to life....".Available at: http://www2.ohchr.org/english/law/ccpr.htm101 Article 25 of UDHR states that "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food,....". Available at: http://www.un.org/en/documents/udhr/index.shtml#a25102 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 305. 103 Declaration of the United Nations Conference on the Human Environment was adopted in the United Nations Conference on the Human Environment which was held at Stockholm, June 5-16, 1972, and was attended by 113 nations. This Declaration included 26 Principles regarding the relationship between humans and the natural environment, as well as an exhaustive list of over 100 recommendations of how to put those principles into action. The Declaration of the United Nations Conference on the Human Environment is available at United Nations Environment Programme. Website: http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503

and that humans bear 'a solemn responsibility to protect and improve the environment for present and future generations'. 104

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. 105

Ten years after the Stockholm Declaration, the United Nations General Assembly adopted the World Charter for Nature by Resolution 37/7, of 28 October 1982.The 1982 World Charter for Nature imposes obligations on states to protect and preserve nature and natural resources much in the same way as the Stockholm Declaration aimed to achieve. 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. 106

In 1992 the Rio Declaration on Environment and Development 107

(known as Rio Declaration) fails to make any specific reference to a given standard of environmental health as a human right.

However, principle 1 of this declaration has a very significant impact on the concept of the right to healthy environment. 108

104 Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and Comparative Environmental Law vol.1, no.2, page 208.105 Ibid-page 209.106 Ibid-page 209.107 Rio Declaration on Environment and Development (known as Rio Declaration) was adopted in the United Nations Conference on Environment and Development which was held at Rio de Janeiro from 3 to 14 June 1992 and was attended by 178 nations and 100 heads of state. Reaffirming the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, the Rio Declaration aimed to achieve international agreements which will respect the interests of all and protect the integrity of the global environmental and development system. This declaration included 27 principles.Available at United Nations Environment Programme. Website:http://www.unep.org/Documents.Multilingual/Default.asp?documentID=78&articleID=1163108 Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and Comparative Environmental Law vol.1, no.2, page 209.

Principle 1 of Rio Declaration states that "human beings are... entitled to a healthy and productive life in harmony with nature." While the Rio Declaration, like the Stockholm Declaration, is a set of legally non-binding principles, Principle 1, which was accepted without reservation by almost every nation, captures the ideals of a human right to a healthy environment.109

The language of Principle 1 of the Rio Declaration was reproduced verbatim, and accepted without reservation by 179 nations at the 1994 U.N. Conference on Population and Development; by 186 nations at the 1995 World Summit for Social Development; by 175 nations at the 1996 Second Conference on Human Settlements (Habitat II); and by 17 nations at the OAS-sponsored 1997 Hemispheric Summit on Sustainable Development.110

For the purposes of international human rights regime, this reaffirmation of the language agreed upon in Principle 1 of the Rio Declaration is very significant. While each of these reaffirmations is legally non-binding, the fact that almost every nation made this reaffirmation without reservation is evidence of a widespread and consistent state practice. Such practice can contribute to the creation of a right to a healthy environment as a principle of international human rights order. 111

Other sources which have directly or indirectly mentioned about human rights to healthy environment would include Regional Human Rights initiatives, the ILO Convention 169 on Indigenous and Tribal Peoples,112 United Nations Declaration on the Rights of Indigenous Peoples and the Draft Declaration of Principles on Human Rights and the Environment 1994 113

109 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 308. 110 John Lee.(2000)‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 309. ]111 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 309. 112 Article 7 of the ILO Convention 169, recognizes indigenous peoples' right to environment.113 On 16 May 1994, an international group of experts on human rights and environmental protection convened at the United Nations in Geneva and drafted the first-ever Declaration of Principles on Human Rights and the Environment.

On a regional level, right to a healthy environment has been recognized in several multilateral instruments. The African Charter on Human and People's Rights114( known as Banjul Charter) explicitly recognizes a right to a healthy environment. Article 24 of Banjul Charter clearly states that "all peoples shall have the right to a general satisfactory environment favorable to their development." 115

The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights 116 (known as the Protocol of San Salvador) also explicitly recognizes a right to a healthy environment in Article 11 of Protocol of San Salvador which states that “everyone shall have the right to live in a healthy environment and to have access to basic public services." No reservations were taken concerning art.11. 117

The Declaration of Santa Cruz 118 which was adopted at the Hemispheric Summit on Sustainable Development, in Bolivia on Most importantly Principle 2 of the Draft Declaration of Principles on Human Rights and the Environment states that “all persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.”The Draft Declaration of Principles on Human Rights and the Environment is available at:http://fletcher.tufts.edu/multi/www/1994-decl.html114 The African Charter on Human and People’s Rights was adopted on June 27, 1981, and went into force on October 21, 1986. By March, 2007, 52 African states were parties to the Charter. Almost every nation in Africa is a party to the Banjul Charter. The Banjul Charter gives a listing of the rights and the duties of the African people. Under Chapter I (Human and People's Rights), Article 24, the right of all peoples to a general satisfactory environment favorable to their development has been recognized which says that “all peoples shall have the right to a general satisfactory environment favorable to their development.” No reservations were taken concerning Article 24. This Charter is available at: http://www.achpr.org/english/_info/charter_en.html115 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 306.116 The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (known as the Protocol of San Salvador) was adopted on November 17, 1988, and entered into force on November 16, 1999. As of March, 2000, 18 countries had signed the Protocol. Article 11 of this Protocol states that “everyone shall have the right to live in a healthy environment and to have access to basic public services" In addition, states party are required to promote the "protection, preservation and improvement of the environment. This Protocol is available at Organisation of American States. Website: http://www.oas.org/juridico/English/treaties/a-52.html117 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 306.

December 7-8, 1996 also reaffirms that human beings are entitled to a healthy and productive life in harmony with nature.119

So from the above analysis it can be asserted that internationally, there are indications that we are moving towards recognising a right to a healthy environment as a separate human right. International and regional efforts such as the Stockholm Declaration, the World Charter for Nature, the Rio Declaration, the San Salvador Protocol, and regional efforts in Africa, point in this direction, as do international and regional court’s rulings. 120

2.3.4 International and Regional Court’s Inclination to the Right to Healthy Environment

In international and regional courts, such as the International Court of Justice (ICJ), the European Court of Human Rights (ECHR), and the Inter-American Commission on Human Rights (IACHR) have inclination to a right to a healthy environment.

For example, in Lopez Ostra v. Spain-(16798/90) ECHR [9 December 1994]121 the ECHR found a link between the environment

118 The Declaration of Santa Cruz, a legally non-binding document, was adopted at the Hemispheric Summit on Sustainable Development, which was organized by the OAS and held in Bolivia on December 7-8, 1996. The Summit was attended by 34 member states, and reaffirms the commitments set forth in both the Rio Declaration and Agenda 21. The Declaration of Santa Cruz stated that "we reaffirm that human beings are entitled to a healthy and productive life in harmony with nature and, as such, are the focus of sustainable development concerns." The Declaration of Santa Cruz is available at Organisation of American States. Website: http://www.summit-americas.org/boliviadec.htm119 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 306.120 Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and Comparative Environmental Law vol.1, no. 2, page 213.121 Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lopez%20%7C%20Ostra%20%7C%20v.%20%7C%20Spain&sessionid=28908871&skin=hudoc-en

and the right to enjoy private and family life as expressed in Article 8 of the European Convention on Human Rights.

In Yanomani Indians v. Brazil, Inter-Am. C.H.R. 7615, OEA/Ser.L.V/II/66 doc. 10 rev. 1 (1985). The Inter-American Commission on Human Rights found that Brazil had violated the Yanomani Indians' right to life, liberty and personal security by not taking measures to prevent the environmental damage that resulted in the loss of life and cultural identity among the Yanomani 122

In Gabcikovo-Nagymaros Projects case 123 1997 (a case between Hungary and Slovakia,) although the ICJ did not explicitly recognize a human right to a healthy environment, the majorities recognized 124 that new environmental norms were developing and that they must be taken into account for the future recognition of a human right to a healthy environment by the ICJ. 125

There have been several national tribunals that have explicitly given recognition to a right to a healthy environment.

In Fundepublico v. Mayor of Bugalagrande and Others, the Constitutional Court of Colombia held in favor of the right to a healthy environment as a fundamental human right. In its decision, the court made reference to rights contained in the Colombian Constitution and also to "recent developments in international law." Subsequently, decisions made by the Constitutional Court in July 1995 and June 1996

122 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 311-12. 123 Gabcikovo-Nagymaros Project case (Hungary v. Slovakia.), International Court of Justice. Report No- 7. Judgment Delivered on 25th September 1997. Available at: http://www.icj-cij.org/docket/files/92/7375.pdf124 Vice President Weeramantry, in an unjoined separate opinion explaining his vote in Gabcikovo-Nagymaros, stated that "the protection of the environment is... a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself." The judge stated that the people of Hungary and Slovakia are "entitled to the preservation of their human right to the protection of their environment. While the separate opinion is not legally binding, it shows that a leading member of the ICJ has accepted the convergence of environmental issues and human rights. 125 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 312.

reaffirmed Colombia's acceptance of the right to a healthy environment. 126

A right to a healthy environment was affirmed in South Africa in Wildlife Society of Southern Africa and Others v. Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others. Here the Court ruled that everyone has a right to live in a healthy environment 127

In the absence of a specific multilateral treaty or convention on a right to a healthy environment, it can now be argued that the above analysis and rulings of the courts manifest that the right to a healthy environment is attaining the status of a rule of customary international human right law. 128

It can also be insisted that internationally accepted human right to a healthy environment will provide the most effective and consistent legal basis to human rights violation caused by climate change. 129

Scholars suggest that in the context of climate change, human rights should be interpreted with regard to general principles of the right to healthy environment

Environmental lawyers and human rights scholars also recommend that since human rights instruments in relation to the right to healthy environment are not precise enough to be implemented, 130 the most viable strategies for constructing a human rights-based approach to climate change are to re-interpret the existing human rights law in the context of the principles of the right to healthy environment 131 which asserts that humans have the right to live 'in an environment of a quality that permits a life of dignity and well being.132.

126 Ibid- page 318.127 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 319 128 Ibid- page 339129 Ibid- page 339130 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page 161-180131Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 245.132 Principle one of the Declaration of the United Nations Conference on the Human Environment 1972 ( known as Stockholm Declaration)

2.3.5 Can the Existing Human Rights be Extended to Include Climate Change Protection?

Some critics claim that that climate change is not a human rights issue because it is not globally recognised.133

However regarding this claim it can be argued that the question that should be examined is whether interference with the right amounts to an infringement of basic human dignity, not whether the right is currently universally recognized. The fact that such protections are not currently recognized is not the final determinant of whether the rights should be acknowledged. That is, according to the well accepted ethical maximum, the “is-ought dichotomy,”  what “is” cannot define what “ought” to be. So the appropriate question for extending human rights regime into climate change debate is whether the impacts of climate change prevents enjoyment of basic human right and human dignity. 134

It is now established that climate change is preventing the enjoyment of well recognised basic human rights such as right to life, to food, to water, to health and to shelter which are already acknowledged as entitled to universal human rights.

So from the above analysis it can be argued that the present human rights regime can be extended to include climate change protection. There are many broad rights recognised in the UDHR, ICCPR, ICESCR, and other international and regional human rights instruments which are relevant to the situation of people whose way of life comes under threat from climate change. States have a responsibility under these human rights instruments to take action to remedy the direct and indirect threats to these rights posed by climate change. 135

133 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page 161-180134 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at: http://climateethics.org/?p=39135 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page 161-180

Chapter 3: Human Rights Affected by Climate ChangeHuman rights scholars suggest that in order to decide whether the effects of climate change infringe human rights of people under current human rights regimes, it is important to investigate whether the sufferings caused by the impacts of climate change interfere with rights expressly recognized by these existing regimes.136

In order to find out which rights have been affected by the climate change, this paper would adopts this approach arguing that existing human rights law should be expanded to encompass climate change impacts 137

The following section will analyse the effects of climate change on human rights which have been identified in human rights regimes as relevant to sufferings caused by climate change.138 This section will also highlight other links between human rights and climate change, such as the concept of climate change refugees.

3.1 Right to Life

3.1.1 Legal Basis of the Right to Life in International Human Rights Law:

136 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at: http://climateethics.org/?p=39137 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 245 138 James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at: http://climateethics.org/?p=39

Article 3 of the UDHR139 and article 6(1)140 of the ICCPR clearly declare that everyone has the right to life, liberty and security which are inherent and shall be protected by law. Article 6 of the Convention on the Rights of the Child (CRC) also provides specific protection about the right to life of children.141 The UN Human Rights Committee in its General Comment142 on the right to life warned against interpreting the right to life in a narrow or restrictive manner. It also insists that protection of this right requires the State to take positive measures 143

When a nation fails to take reasonable measures to prevent environmental damage, and the result of such non-action is climate change, those harmed may seek redress for violations of their right to life.144

3.1.2 Current and Projected Impacts of Climate Change on the Right to Life: Directly or indirectly Climate change is already affecting the enjoyment of the right to life of the people of the affected communities. Their standard and quality of life are degrading because of severe storms, catastrophic weather-induced flooding , rising sea level, expanding deserts and heat waves caused by climate change. Those who live in an area affected by climate change will suffer from bad health, lack of nutrition, lack of access to clean drinking water. They are also in a higher exposure to disease. Their quality of life would be affected form every aspect because of climate change. 145

139 Article 3 of the UDHR provides ‘everyone has the right to life, liberty and security of person’140 Article 6(1) of the ICCPR provides ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’141 Article 6 (1) (2) of states that state parties recognise that every child has the inherent right to life and that state parties shall ensure to the maximum extent possible the survival and development of the child.’142 UN Human Rights Committee, General comment No. 6 - the Right to Life (1982). Paras. 1 and 5. Available at the Office of the United Nations High Commissioner for Human Rights. Website: http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3143 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page161-180144 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 251.145 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-11. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_ClimateChange.pdf

The World Health Organisation has estimated that since the 1970s deaths caused by the impacts of climate change amount to 150,000 every year.146 Increasing intensity and frequency of heat waves, floods, storms, and droughts caused by climate change are projected to lead to more deaths. 147

Heat waves caused by climate change are likely to increase deaths among elderly or chronically sick people, young children, and the socially isolated people. Europe’s 2003 heat wave – induced by climate change – resulted in 27,000 extra deaths. 148

3.2 Right to Food

3.2.1 Legal Basis of the Right to Food in International Human Rights Law: Article 11(1) & (2) of the ICESCR149 clearly recognise the right to food of all human beings. It states that everyone has a right to adequate food and to be free from hunger. The UN Special Report on the Right to Food has recognised the right to food as an inherent human rights which states150 that the right to adequate

146 Nicholas Stern Report on Climate Change. (2006) [Known as Stern Review] Published by the United Kingdom. Available at: http://www.hm-treasury.gov.uk/stern_review_report.htm147 Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow. (2008) A Briefing Paper by Greenpeace. Page --4 Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.pdf148 Purple Romero. (2008) ‘Wealthy nations’ failure to mitigate climate change violates rights in developing countries.’ ABS-CBNNEWS. Available at:http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigate-climate-change-violates-rights-developing-149 Article 11(1) of the ICESCR states that “the States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.” Article 11(2) of the ICESCR states that “The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed: (a) To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources; (b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.”

food is a human right, inherent in all people.151 The right to food includes four components; Food availability; Access to food; Stability of food supply; and Utilisation of food. 152

3.2.2 Current and Projected Impacts of Climate Change on the Right to Food: The impacts of climate change on the right to food are clearly evident. The Food and Agriculture Organisation of the United Nations (FAO) at the recent High-Level Conference on Food Security : The Challenges of Climate Change and Bioenergy (the High-Level Conference) identifies that climate change will affect the right to food in the following way:

Availability of food: Availability of food will be reduced by a drop in food production caused by extreme events, changes in the suitability or availability of arable land and water, and the unavailability or lack of access to crops, crop varieties and animal breeds that can be productive in conditions have lead to changes in pests and diseases; 153

Access to food: Access to food will be worsened by climate change events that lead to damages in infrastructure and losses of livelihood assets as well as loss of income and employment opportunities; 154

Stability of food supply: Food supply could be influenced by food price fluctuations and a higher dependency on imports and food aid; 155

150 The UN Special Report on the Right to Food states that the right to adequate food is a human right, inherent in all people to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of people to which the consumer belongs, and which ensures a physical and mental, individual and collective fulfilling and dignified life free of fear.151 Jean Ziegler, The Right to Food (Report by the Special Rapporteur on the right to food to the Commission on Human Rights 57th session, 2001) UN Doc E/CN.4/2001/53 at p. 2. Available at: http://daccessdds.un.org/doc/UNDOC/GEN/G01/110/35/PDF/G0111035.pdf?OpenElement

152 ? Conference paper of ‘the High Level Conference on Food Security: The Challenges of Climate Change and Bioenergy’. Rome 3-5 June 2008. The Food and Agriculture Organisation of the United Nations (FAO). Page-2 & 3 Available at:

ftp://ftp.fao.org/docrep/fao/meeting/013/ai782e.pdf153 ? Ibid-page 2. 154 ? Ibid-page 2. 155 ? Conference paper of ‘the High Level Conference on Food Security: The

Challenges of Climate Change and Bioenergy’. Rome 3-5 June 2008. The Food and

Utilisation of food: Utitisation of food can be affected indirectly by food safety hazards associated with pests and animal diseases as well as the increased presence of human diseases such as malaria and diarrhea. 156

‘Around 800 million people are currently at risk of hunger. Projected climate change is expected to put close to 50 million more people at risk of hunger by 2020, and an additional 132 million people by 2050.157 According to the Stern Review, if global temperatures are permitted to increase by 3°C, 250-550 million additional people may be at risk of hunger – over half in Africa and Western Asia.158

‘In Africa, shrinking arable land, shorter growing seasons, and lower crop yields will exacerbate malnutrition. In some countries, yields from rain-fed agriculture could fall by 50 per cent as soon as 2020. In parts of Asia, food security will be threatened due to water shortages and rising temperatures. Crop yields could fall by up to 30 per cent in Central and South Asia by 2050.’ 159

3.3 Right to Water

3.3.1 Legal Basis of the Right to Water in International Human Rights Law: Though the right to water has not been expressly mentioned in the original UN human rights documents, the Economic and Social Council (ESC) in General Comment 15 on the Right to Water, asserts that the right to water is inherent in many other explicitly mentioned rights such as such as the right to health (art 12, paragraph 1 of ICESCR160), adequate housing

Agriculture Organisation of the United Nations (FAO). Page-3 Available at: ftp://ftp.fao.org/docrep/fao/meeting/013/ai782e.pdf156 ? Ibid-page 3.

157 Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow. (2008) A Briefing Paper by Greenpeace. Page --4 Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.pdf158 Ibid-page 5 159 Purple Romero. (2008) ‘Wealthy nations’ failure to mitigate climate change violates rights in developing countries.’ ABS-CBNNEWS. Available at:http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigate-climate-change-violates-rights-developing-160 Article 12(1) of ICESCR states that “the States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

and adequate food (art 11, paragraph 1 of ICESCR 161), as well as the right to life as set out in the UDHR.162 ESC insists that “the right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival.”163

The right to water is also explicitly mentioned in two other conventions; the Convention on the Rights of the Child (CRC) at article 24 164 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)165 at article 14. 166

WHO, the High Commissioner for Human Rights, Water Aid, COHRE and the Committee on Economic and Social Rights (Right to Water Coalition) also recognise that access to sufficient safe water is a human right and fresh water is a legal entitlement.167

3.3.2 Current and Projected Impacts of Climate Change on the Right to Water: The major impact of climate change on the right to water is the lack of access of fresh water which may even trigger the violation of other human rights and degrade the quality of life.

161Article 11(1) of ICESCR states that “the States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”162 Article 25 of the Universal Declaration of Human Rights of 1948 guarantees all people the “right to a standard of living adequate for the health and well-being of himself and of his family.”163 Economic and Social Council, General Comment 15 (2002), The right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights). Paragraph 3. Available at: http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument164 Article 24(2) (c) of the CRC insists that clean drinking water is the right of the child and state parties will ensure this for children.165 On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. 166 Article 14(2)(h) of (CEDAW) asserts that woman has a right to water and states parties will ensure that woman will enjoy adequate water supply. 167 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-21. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_ClimateChange.pdf

Changes in water quantity and quality due to climate change are expected to increase vulnerability of poor rural farmers, especially in the arid and semi-arid tropics and Asian and African megadeltas.168

‘Higher water temperatures is projected to affect water quality and exacerbate many forms of water pollution – from sediments, nutrients, dissolved organic carbon, pathogens, pesticides and salt, as well as thermal pollution, with possible negative impacts on ecosystems, human health, and water system reliability and operating costs.’ 169

In addition, ‘sea-level rise is projected to extend areas of salinisation of groundwater and estuaries, resulting in a decrease of freshwater availability for humans and ecosystems in coastal areas.’ 170

‘Adverse effects of climate change on freshwater systems aggravate the impacts of other stresses, such as population growth, changing economic activity, land-use change and urbanization.’ 171

3.4 Right to Health

3.4.1 Legal Basis of the Right to Health in International Human Rights Law: Article 25 of the UDHR and article 12 (1) of the ICESCR clearly recognise the right to health stating that“everyone has the right to a standard of living adequate for the health and well-being of himself and his family. The Convention on the Rights of the Child (CRC)172 and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 173 contain similar provisions for the right to health. 174

168 Bates, B.C., Z.W. Kundzewicz, S. Wu and J.P. Palutikof, Eds. (2008) Climate Change and Water. Technical Paper of the Intergovernmental Panel on Climate Change, the Intergovernmental Panel on Climate Change (IPCC) Secretariat, Geneva, Page-3.Available at: http://www.ipcc.ch/pdf/technical-papers/climate-change-water-en.pdf169 Ibid-page 3.170 Ibid-page 3171 Ibid-page 3172 Article 24 of CRC states that parties must ensure that every child enjoys the “highest attainable standard of health.”173 Article 12 of the CEDAW provides for equality for women in relation to issues concerning health and health care provision.174 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-17. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_ClimateChange.pdf

3.4.2 Current and Projected Impacts of Climate Change on the Right to Health:

Climate change poses significant risks to the right to health. A 2003 joint study conducted by the World Health Organisation and the London School of Hygiene and Tropical Medicine state that global warming may be responsible for more than 160,000 deaths a year from malaria and malnutrition; a number that could double by 2020.175

Increasing floods and droughts will lead to more cases of diarrhoea and cholera. Over 150,000 people are currently estimated to die each year from diarrhea and cholera and malnutrition caused by climate change. Child malnutrition will increase, damaging growth and development prospects for millions of children. 176

Climate change affects the intensity of a wide range of diseases – vector-borne, water-borne and respiratory. Changing temperatures will cause some infectious diseases to spread into new areas. It is estimated that 220–400 million more people will be at risk of malaria. The risk of dengue fever is estimated to reach 3.5 billion people by 2085 due to climate change. 177 In the Pacific, changes in temperature and rainfall will make it harder to control dengue fever.

3.5 Right to Development

3.5.1 Legal Basis of the Right to Development in International Human Rights Law

The concept of the Right to Development is a new addition to the international human rights arena.178

175 Background Paper on Climate Change and Human Rights (2008) Published by Human Rights and Equal Opportunity Commission (HREOC) Australia. Page- 6, Available at:http://www.humanrights.gov.au/pdf/about/media/papers/hrandclimate_change.pdf176 Purple Romero. (2008) ‘Wealthy nations’ failure to mitigate climate change violates rights in developing countries.’ ABS-CBNNEWS. Available at:http://www.abs-cbnnews.com/special-report/09/15/08/wealthy-nations%E2%80%99-failure-mitigate-climate-change-violates-rights-developing-177 Ibid.178 L. A. Obiora. (1996) ‘Beyond the Rhetoric of a Right to Development.’ Law and Policy vol. 18, page- 369

“The right to development is the right to a process of development, consisting of a progressive and phased realization of all the recognized human rights, such as civil and political rights, and economic, social and cultural rights (and other rights admitted in international law) as well as a process of economic growth consistent with human rights standards.” 179

Article 1 of the Declaration on the Right to Development 180 states that ‘the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.’

The Declaration recognises that the human person is the central subject of development181 and each person is responsible in ensuring the full realisation of the right to development.182

3.5.2 Current and Projected Impacts of Climate Change on the Right to Development This paper has already analysed that climate change is threatening all the basic human rights such as right to life, to food, to water, to health, to property etc. Full enjoyment of all these rights are pre-conditions for human development as it was also recognised by UNDP, Human Development Report 2007/2008, Fighting climate change: Human solidarity in a divided world.

179 Arjun Sengupta. (2004) ‘The Human Right to Development.’ Oxford Development Studies vol. 32, No. 2, page-182.180 The Declaration on the Right to Development (the Declaration) was adopted by the United Nations General Assembly in 1986. Further, the World Conference on Human Rights, held in Vienna in 1993, reaffirmed by consensus the right to development as a universal and inalienable right and an integral part of fundamental human rights. 181 Article 2 (1) of the right to development states that The human person is the central subject of development and should be the active participant and beneficiary of the right to development182 Article 2 (2) of the right to development states that All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfilment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development.

Since the right to development is an inalienable human right which requires acknowledgement and enjoyment of all human rights, any one of human rights violation will impair the right to development. Climate change can affect the right to development by threatening food security water security; causing a decrease in the earth’s landmass through rising sea levels; causing drastic weather patterns such as cyclones, floods and drought; altering the biological balance of our planet, resulting in the destruction of ecosystems and the extinction of many species; and impacting upon human health through the outbreak of disease and epidemics. 183

Because of the above effects of climate change on the right to development, the attainment of the right to development by developing countries will be severely impaired and the advances made in human development in both developing and developed countries may be reversed. 184

3.6 Right to Property

3.6.1 Legal Basis of the Right to Property in International Human Rights Law

Article 17 of the UDHR clearly affirms that ‘everyone has the right to own property alone as well as in association with others and no one shall be arbitrarily deprived of his property.’ Some other regional human rights organs such as Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms( known as the European Convention on Human Rights)185

183 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-12. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_ClimateChange.pdf184. Ibid-page12. 185 Article 1 of Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( the European Convention on Human Rights) states that “every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” This protocol is available at Council of Europe.

and the American Convention on Human Rights have also recognised the right to property.186

3.6.2 Current and Projected Impacts of Climate Change on the Right to Property

It is already proved that the major impacts of climate change are rising sea level, severe storms and flooding. These impacts of climate change will cause the deprivation of property in affected communities, especially in island states and costal area, without any compensation. This deprivation of property also leads into further problems involving displaced persons and refugees. The effects of climate change can also impair the use and enjoyment of property 187

3.7 Rights of Indigenous Peoples

3.7.1 Legal Basis of the Right of indigenous people in International Human Rights Law

Indigenous peoples often live in some of the world's most vulnerable ecosystems and suffer from some of the worst effects of environmental degradation.188 That is why indigenous peoples are internationally recognised as holding unique human rights in relation to their way of life and developing their own political, religious, cultural and educational institutions.189

Website: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf 186 Article 21of the American Convention on Human Rights states that “everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.” Available at Organization of American States. Website: http://www.oas.org/juridico/English/treaties/b-32.html187 John H. Knox. (2009) ‘Linking Human Rights and Climate Change at the United Nations.’ Harvard Environmental Law Review vol.33, page 477-498.188 Prudence Taylor.(1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law.’ Georgetown International Environmental Law Review vol. page 309, 324 189 Jessie Hohmann. (2009) ‘Igloo as Icon: A Human Rights Approach to Climate Change for the Inuit?’ Transnational law & Contemporary Problems vol. 18, no. 2, page 296-316

These unique rights have been recognised internationally. Indigenous rights were first recognised by article 27 of the ICCPR which protects the rights of minorities, including indigenous minorities, to enjoy their own culture, religion and languages. 190

Article 1 of International Covenant on Civil and Political Rights (ICCPR), and article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) also guarantees indigenous peoples the right to self-determination and the right to control their own natural wealth and resources. 191

In addition Article 5 of the Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, article 8(j) of the Convention on Biological Diversity,192 Principle 22 of The Rio Declaration on Environment and Development 193 and Chapter 26 of Agenda 21 194 and the United Nations Declaration on the Rights of Indigenous Peoples 195 clearly recognise the rights of indigenous people with respect to their environment.

Since indigenous communities have been among the first to feel the effects of climate change, it should be both feasible and appropriate that the above international framework of human rights can be expanded to include indigenous rights with regard to climate change. 196

190 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and indigenous rights. Journal of The Australasian Law Teachers Association. vol.1, no.1 & 2. Page-158.191 Ibid-page 158 192 The Convention on Biological Diversity was opened for signature 5 June 1992 and entered into force 29 December 1993 which stresses that indigenous peoples are entitled to contribute to environmental management and sustainable development. Available at: http://www.cbd.int/convention/convention.shtml193 Principle 22 of the Rio Declaration requires that states recognise and support indigenous peoples’ identity, culture and interests, and enable their effective participation in the achievement of sustainable development. [ Source: Ibid- Bridget Lewis.Page-158 ] 194 Chapter 26 of Agenda 21 states that “indigenous people and their communities have an historical relationship with their lands and are generally descendants of the original inhabitants of such lands and shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination.” Available at: United Nations Department of Economics and Social Affairs. Website:http://www.un.org/esa/dsd/agenda21/res_agenda21_26.shtml195 United Nations Declaration on Rights of Indigenous Peoples was adopted in 13 September 2007. The United Nations Declaration on the Rights of Indigenous Peoples recognises that respect for indigenous cultures and knowledge contributes to sustainable development and proper management of the environment. It also guarantees to indigenous communities the right to manage and develop their own territories, and the right to conservation of their environment. [Source: Ibid-Bridget Lewis. Page 158 ]

3.7.2 Current and Projected Impacts of Climate Change on the Rights of Indigenous Peoples

The rights of indigenous populations are often vulnerable to climatic changes because of indigenous peoples’ close relationship with the environment, a reliance on the land and sea for subsistence purposes. 197

Due to lower socioeconomic conditions and less access to quality health care services198 indigenous peoples can have a restricted capacity to adapt to rapid changes in the environment.199 For this reason, indigenous communities are often more vulnerable to the effects of environmental degradation, making them more at risk of human rights violations caused by the effect of climate change.200

Indigenous people completely depend on nature for everything. Their right to life, to food, to water, to health, to property, all would be severely affected by the climate change. Even some scholars are more worried about their existence in a particular native land.

Since these communities have long-established customs that are tied directly to their homelands, if they are forced out of their land as a result of inundation caused by climate change, they will not only lose their place in the world but also a direct link to their culture and identity.201

196 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and indigenous rights. Journal of The Australasian Law Teachers Association vol.1, no.1 & 2. page-158.197 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-15. 198 Christopher Furgal and Jacinthe Seguin. (2006) ‘Climate Change, Health, and Vulnerability in Canadian Northern Aboriginal Communities’ Environmental Health Perspectives vol.114,page 1964, 1968. 199 Wolfgang Sachs. (2004) ‘Environment and Human Rights’ Development vol. 47(1), page 42, 43.200 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and indigenous rights. Journal of The Australasian Law Teachers Association. vol.1, no.1 & 2. page 159.201 Human Rights and Climate Change Study (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Page-15. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_ClimateChange.pdf

3.8 Climate Change Refugees

Another major human rights issue of climate change is climate change refugees. The large influx of refugees created by the problems of climate change is so crucial human rights issue that it needs to be addressed. 202 Though the present definition of refugees 203does not include climate change refugees, environmentalists and international human rights lawyers have begun to recognise that climate change is creating climate change refugees.204 The IPCC warns that rising sea levels will not only inundate low-lying territories, but will foul freshwater supplies for millions of people and spur mass migrations. 205

Migration in response to environmental degradation is fast becoming the most pervasive form of forced migration to occur in the 21st century.206

Oxford academic Norman Myers has predicted that by 2050 up to 150 million people may be forced to migrate because of the impacts of global warming. 207 The predictions of the Stern Review on the Economics of Climate Change echo this concern, estimating that the 202 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 257 203 Article 1(A)(2) of The 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) defines a refugee as any person who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Available at The Office of the United Nations High Commissioner for Refugees (UNHCR) Website: http://www.unhcr.org/3b66c2aa10.html204 A climate refugee is one who leaves his or her home and seeks refuge elsewhere, and does so for reasons relating the environment. In the face of environmental problems such as drought, desertification, and floods, affected people feel that they have no alternative but to leave their homes in order to survive. [Source: Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 256 ]205 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 256.206 Jessica B. Cooper.(1988) ‘Environmental Refugees: Meeting the Requirements of the Refugee Definition.’ New York University Environmental Law Journal vol.6, page 480, 484-485. 207 Norman Myers. (1993) 'Environmental Refugees in a Globally Warmed World' BioScience vol. 43(11), page 752.

scale of migration will reach 200 million by 2050.208

Although the term 'climate change refugees' has often been used to describe the situation of populations displaced due to the impacts of climate change, this does not accurately reflect the status of these populations in international law and there has been no coordinated response from the international community to address their situation 209

Since there are no universal human right instruments recognizing and protecting climate change refugees, they are becoming more vulnerable to degrading behavior. Climate change refugees are becoming victims of human rights violation in two ways; first, they are loosing their country and right to self determination. Second as a climate change refugees they are more likely to be the victim of degrading treatment in country where they get shelter.

From the above discussion of this chapter it is now clear that the effects of climate change is threatening basic human rights such as the right to life, to food, to water, to health and to shelter.

208 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page 161-180.209 Ibid-page161-180

Chapter-4: Direct and Indirect Endorsement of Human Rights-Based Approach to Climate Change in International Frameworks and Regional Human Rights Courts.

In this chapter this paper will analyse the role of international and regional bodies in human rights-based approach to climate change.

4.1 The United Nations Framework Convention on Climate Change ( UNFCCC ): The United Nations Framework Convention on Climate Change (UNFCCC) is at the core of international efforts to address climate change. It was adopted at the United Nations Conference on Environment and Development (UNCED) (which is also known as the Earth Summit) held in Rio de Janeiro from 3 to 14 June 1992. The treaty is aimed at stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. At the UN Summit in Rio de Janeiro in 1992, 154 countries signed the UNFCCC. Today, 192 countries have ratified the convention. It entered into force on March 21, 1994.210

Main goals of the Convention211 are to stabilise the amount of greenhouse gases in the atmosphere in such a way as to give ecosystems the opportunity to adapt naturally. Food safety must not be compromised, and the potential to form sustainable social and economic development must not be endangered.212

210 The United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate Council. Available at:http://www.copenhagenclimatecouncil.com/get-informed/climate-negotiations-updates/what-is-the-unfccc.html211 Governments under the convention bring together and share information on greenhouse gas emissions, national policies and best practices. They cooperate in preparing national strategies for reducing greenhouse gas emissions and adapting to the expected effects of climate change, including bestowing financial and technological support to developing countries. [ Source:The United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate council.]212 The United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate Council. Available at:http://www.copenhagenclimatecouncil.com/get-informed/climate-negotiations-updates/what-is-the-unfccc.html

The Conference of the Parties (COP) is the supreme body of the Convention which is in charge of keeping the international efforts to tackle climate change on target. A central task of the COP is to examine the national communications and emission accounts submitted by parties. 213

Though the UNFCCC does not expressly mention about the climate change impacts on human rights, some environmental lawyers and human rights scholars argue that UNFCCC impliedly mention about the human rights issues of cliamte chnage.They refer to preamble,214 article 2,215 article 3(2)216 (3) (4),217 article 4(1)(e)(f)218 (g), article 4(2)(a) article 4(4)219 article 5(a)(c), article 7(c) and article 12(7) of the UNFCCC and argue that all these articles must be interpreted in accordance with the principles in articles 31 (1) of the Vienna Convention of the Law of Treaties 1969220 which says that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

They also argue that the main purpose of the UNFCCC is to tackle the impacts of climate change. Since the climate change is now affecting human rights, the provisions of UNFCCC also have some persuasive force from human rights perspective.

213 Ibid.214 Preamble of UNFCCC states that “States have … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction” 215 Article 2 of UNFCC insists that stabilization of greenhouse gas concentrations … should be achieved … to ensure that food production is not threatened and to enable economic development to proceed in sustainable manner216 Article 3(2) of UNFCCC asserts that “the Parties shall be guided by, … the specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties” 217 Article 3 (4) states that “the Parties have a right to, and should, promote sustainable development.” 218 Article 4, 1(f) of UNFCCC insists that [The Parties shall:] “take climate change considerations into account … and employ appropriate methods, for example impact assessments, … with a view to minimize adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change”;219 Article 4 (4) of UNFCCC asserts that “the developed country Parties and other developed Parties … shall also assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.” 220 Roda Verheyen. (2007) ‘The Climate Change Regime After Montreal.’ The Yearbook of European Environmental Law vol. 7, page 237-38 (2007).

They assert that “as we read through this extensive list of obligations subscribed to by signatories, by certain states (primarily polluter states) to mitigate impacts, and ensure that vulnerable states and impacted communities have the financial means, technical capacity and necessary adaptation projects to address the impacts the polluters have caused, and as we think through this list with a human rights framework in mind, we can clearly see that the UNFCCC is recognizing the effects of climate change on vulnerable communities from human rights perspective. It is also indicating to adopt human rights-based approach to climate change.”221

4.2 The Kyoto Protocol: The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change. The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005. 184 Parties of the Convention have ratified its Protocol to date. The detailed rules for the implementation of the Protocol were adopted at COP 7 in Marrakesh in 2001, and are called the “Marrakesh Accords.”222

The major feature of the Kyoto Protocol is that it sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions .These amount to an average of five per cent against 1990 levels over the five-year period 2008-2012. 223

Significantly, the Kyoto Protocol does not directly or indirectly mention about the human rights issues of climate change. It does not truly involve grassroots communities and peoples who are worst-affected. It has grossly neglected the severe damage to their livelihoods, well-being and welfare.224

However, some scholars argue that since Kyoto Protocol is directly linked with the United Nations Framework Convention on Climate Change (UNFCCC), it has also implied purposes to reduce the impact of climate change from human rights perspective.221 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’ Centre for Human Rights and Environment. ( CEDHA ) Page-24. Available at:http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf222 The Kyoto Protocol to the United Nations Framework Convention on Climate Change. Available at: http://unfccc.int/kyoto_protocol/items/2830.php223 Ibid224 Statement on the Kyoto Protocol and Cliamte Change. (2008) Asia-Pacific Research Network (APRN). Available at:http://www.aprnet.org/index.php?option=com_content&view=article&id=68:statement-on-the-kyoto-protocol-and-climate-change&catid=50:issues-a-concerns

4.3 The International Court of Justice

The International Court of Justice (ICJ) has not an extensive role in promoting the rights related to environment and climate change. Since ICJ was established in 1945, there have been only four environmental cases in the ICJ's jurisprudence to date.In Corfu Channel case 225 which was concerned with a dispute between United Kingdom and Albania.226 In this case, ICJ first considered environmental harm and recognized that environmental harm is an offence. Even it is an offence against sovereignty.

In Nuclear Testing Case 227 which was concerned with a dispute between New Zealand and France over some atomic tests carried out by France at the Mururoa and Fangataufa Atolls in the Pacific 2,500 miles from New Zealand. New Zealand, in short, claims that atomic tests were detrimental for environment.

Although the ICJ dismissed New Zealand's claims without ruling on this issue for technical point, Justice Weeramantry, in his dissenting opinion asserted that welfare of environment is securing increasing support as part of the international law of the environment.

In Gabcikovo-Nagymaros Project case 228 which was concerned with a dispute between Hungary and Slovakia over building two dams on the Danube River. ICJ in this case indicated that where environmental damage is concerned, international communities have obligations to co-operate to prevent that damage.

225 Corfu Channel case (United Kingdom v Albania). International Court of Justice. Judgment Delivered on 9th April 1949. Available at: http://www.icj-cij.org/docket/files/1/1645.pdf226 In 1946 two British warships struck mines in Albanian water in the Corfu Channel and many British sailors were killed.227 Nuclear Tests case (New Zealand v. France ), International Court of Justice. Available at: http://www.icj-cij.org/docket/files/97/7187.pdf228 Gabcikovo-Nagymaros Project case (Hungary v. Slovakia.), International Court of Justice. Report No- 7. Judgment Delivered on 25th September 1997. Available at: http://www.icj-cij.org/docket/files/92/7375.pdf

Most importantly the ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons recognized a principle which is more relevant to a climate change issue. ICJ observed that it is a general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control.229 This principle of international environmental law was also expressed in the Stockholm Declaration230

and the Rio Declaration.231

Scholars argue that ICJ’s Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons will clearly apply to climate change. As we know that climate change is mostly the consequences of global human activities. Climate change has no boundaries. Every state is liable for climate change and every state has responsibility to minimize the effect of and climate change.

4.4 European Court of Human Rights

Though the European Court of human rights is regional, it is very influential in the field of human rights all over the world, as it was the first human rights court. It has produced a large amount of jurisprudence on human rights.232

Though the European Convention on the Protection of Human Rights and Fundamental Freedoms ( known as the European Convention on Human Rights) which is the main legal instrument of the European Court of human rights, does not have any express provisions about the human rights on environment or climate change, the European Court 229 Advisory Opinion of International Court of Justice on Legality of the Threat or Use of Nuclear Weapons, 8th July 1996. Available at: http://www.icj-cij.org/docket/files/95/7495.pdf230 Principle 21 of Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) and principle 2 of Rio Declaration on Environment and Development, states in same word that “States have……… responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of their national jurisdiction.”231 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol 9, page 522.232 John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 299.

of human rights has interpreted article 2 (right to life) and article 8 (right to private and family life ) in a way that these articles can be applied to human rights violation caused by environmental degradation or climate change. 233

Some Case Law Examples of This Attitude

Lopez Ostra v. Spain-(16798/90) ECHR [9 December 1994]. 234

This is the first and landmark environmental case of the European Court of Human Rights. Applicant Gregoria Lopez Ostra of Spain alleged that a leather processing waste treatment plant near her home, which released fumes, smells, and contamination generated severe environmental pollution. This environmental pollution caused health problems and a nuisance violating her right to privacy and family security under article 8 of the European Convention on Human Rights. The Court observed that “naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely.”235 The Courts finally found that the government failed to protect the applicant's effective enjoyment of her right to respect for her home and her private and family life and accordingly there has been a violation of article 8.236

Fadeyeva v. Russia,-(55723/00) ECHR. [11 November 2005].237 In this case, the applicant Ms. Nadezhda Mikhaylovna Fadeyeva of Russia who lived about 450 meters from Russia's largest iron smelter, alleged that the extent of environmental air pollution at her place of residence was seriously detrimental to her health and wellbeing and the government failed to protect her private life and home under article 8 of ECHR. The Court observed that “over a significant period of time the 233 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 529 234 Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lopez%20%7C%20Ostra%20%7C%20v.%20%7C%20Spain&sessionid=28908871&skin=hudoc-en235 Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Para-51.236 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 530 237 Fadeyeva v. Russia-(55723/00) ECHR. [11 November 2005]. Available at:http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Fadeyeva%20%7C%20v.%20%7C%20Russia&sessionid=28908871&skin=hudoc-en

concentration of various toxic elements in the air pollutes the environment. The air pollution becomes potentially harmful to the health and well-being of those exposed to it. 238

The court ruled that over a significant period of time the concentration of various toxic elements in the air near the applicant's house seriously caused environmental damage which affected the applicant's effective enjoyment of her right to respect for her home and her private life and accordingly there has been a violation of article 8 of ECHR.239

Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005].240 In this case the applicants alleged that Turkish government had permitted to use sodium cyanide for gold mining which was very detrimental for the surrounding environment for the people who lived near by. The court observed that “permission for using sodium cyanide for mining was detrimental for the applicants’ effective enjoyment of the right to life and the right to a healthy environment and concluded that the permit did not serve the public interest” 241 Finally the court ruled that the mining for gold using sodium cyanide violated the right to respect for private and family life in breach of article 8. 242

Guerra and Others v. Italy-( 116/1996/735/932 ) ECHR [19 February 1998]243 In this case forty applicants lived in the town of Manfredonia, approximately one kilometer from a "high risk" chemical factory that produced fertilizers and other highly toxic chemicals. In the course of its production cycle the factory was releasing highly toxic substances such as sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides, benzoic acid and arsenic trioxide into the atmosphere. Because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia where one

238 Fadeyeva v. Russia-(55723/00) ECHR. [11 November 2005]. Para- 87.239 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, Page 530 240 Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005] Available at:http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Taskin%20%7C%20v.%20%7C%20Turkey&sessionid=28908871&skin=hudoc-en241 Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005] Para-117242 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 530 243 Guerra and Others v. Italy-( 116/1996/735/932 ) ECHR [19 February 1998] Available at:http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Guerra%20%7C%20v.%20%7C%20Italy&sessionid=28908871&skin=hudoc-en

hundred and fifty people were admitted to the hospital with acute arsenic poisoning.

Further applying the principle established in Lopez Ostra v. Spain-(16798/90) ECHR [9 December 1994] the Court points out that Article 8 applies to severe environmental pollution which may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely. Since environmental pollution affected the victim’s well-being the court ruled that article 8 had been violated.244

Analyzing the above cases, it can be said that decisions and observations of the European Court of Human Rights on environmental pollution are very significant in regard to the impacts of climate change. One of the major impacts of climate change is the environmental pollution which has dramatic and adverse impacts on life and health both of which are central concerns of human rights regimes.

The above decisions and observations also indicate that human rights courts are ready to consider human rights-based approach to climate change and there are potential for bringing a claim in Europe concerning violation of human rights caused by human-induced climate change.245

4.5 Inter-American Commission and Court of Human Rights

The Inter-American Commission and Court of Human Rights are very influential bodies for human rights regime. The American Convention on Human Rights and the Additional Protocol to the Convention (known as the Protocol of San Salvador) are the main legal instruments of these bodies which clearly recognizes that everyone shall have the right to live in a healthy environment.246 This principle is very important for the protection of human rights violated by the impacts of climate change. 244 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 531245 Ibid- page 533.246 Ibid-page 533

This paper has already discussed in second chapter that in 2005 human rights-based approach to climate change was first officially introduced in the Inuit case247 in the Inter-American Commission on Human Rights. In this case Inuit people of Alaska and Canada alleged that the effect of climate change is threatening their basic human rights. The petition asked the commission to declare the United States in violation of rights affirmed in the 1948 American Declaration of the Rights and Duties of Man because the United States is one of the largest emitters of GHGs.248

Although Inter-American Commission on Human Rights rejected the petition on technical ground stating that …..the information provided does not enable them to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration249 the commission subsequently held a hearing on March 1, 2007, on connection between human rights and climate change 250 in which the commission recognized a link between climate change and human rights. This recognition could have a powerful impact on worldwide efforts to address climate change. 251

4.6 African Commission of Human and Peoples' Rights

247 This Petition was submitted on December 7 2005 to the Inter-American Commission on Human Rights Seeking Relief from Human Rights Violations Resulting from Global Warming Caused by Acts and Omissions of the United States. Available at http://www.inuitcircumpolar.com/files/uploads/icc-files/finalpetitionicc.pdf248 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 535 249 Ibid-page 535 250 Press Release, EarthJustice, Inter-American Commission on Human Rights to Hold Hearing on Global Warming, (Feb. 6, 2007) Available at: http://www.earthjustice.org/news/press/007/inter-american-commission-on- human- rights -Hearing-on-Global-Warming.html 251 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 536

The African Commission on Human and Peoples' Rights (ACHPR)252 is very powerful quasi–judicial body for promoting and protecting human rights throughout the African continent.

In the commission Social and Economic Rights Action Center v. Nigeria is a landmark case on the right to healthy environment which is indicating the commission’s inclination to recognize human rights-based approach to climate change.In Social and Economic Rights Action Center v. Nigeria 253the Action Center alleged “that the Nigerian government has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards.”254 They also argued that the Nigerian government violated the right to health and the right to clean environment as recognized under Articles 16 and 24 of the African Charter 255 by failing to fulfill the minimum duties required by these rights. 256

The commission found that Nigeria has violated articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter on Human and Peoples' Rights

252 The African Commission on Human and Peoples' Rights (ACHPR) is a quasi –judicial body for promoting and protecting human rights throughout the African continent. It came into force on 21 October 1986. The Commission interprets the African Charter on Human and Peoples’ Rights and considers individual complains of the violations of the Charter253 Soc. & Econ. Rights Action Ctr. v. Nigeria, No. 155/96 (Afr. Comm'n H. & Peoples' R., May 27, 2002), Available at http://www.escr-net.org/usr_doc/serac.pdf254 Soc. & Econ. Rights Action Ctr. v. Nigeria, No. 155/96 (Afr. Comm'n H. & Peoples' R., May 27, 2002), Available at http://www.escr-net.org/usr_doc/serac.pdf255 Most importantly article 24 of the African Charter on Human and Peoples' Rights (African Charter) says that all peoples shall have the right to a general satisfactory environment favorable to their development. African Charter on Human and Peoples' Rights. (known as Banjul Charter) Adopted on June 27, 1981 and entered into force Oct. 21, 1986. OAU Doc. CAB/LEG/67/3. Available at: http://www.achpr.org/english/_info/charter_en.html256 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol-9, page 536.

257 and appealed to the government of Nigeria "to ensure protection of the environment, health and livelihood of the people of Ogoniland.258

The findings of the commission in Social and Economic Rights Action Center v. Nigeria case is very significant in this sense that where a government violates human rights by not fulfilling its duty to protect the environment, health, and livelihood of people from the negative consequences of climate change, this case could be an important precedent to show that judicial body is already recognizing the human rights-based approach to environmental damage.259

4.7 Propensity of National Courts to Recognise Human Rights Based- Approach to Climate Change

In addition to the above regional human rights court’s positive attitude to human rights approach to climate change, rulings of some national courts also show that they are ready to adopt human rights approach to environmental degradation and climate change. In the Philippines, 260 in Minors Oposa v. Department of Environment and Natural Resources case261the Supreme Court, recognizing the right to healthy environment, observed that right to a balanced and healthful ecology is very important for

257 The commission found that ‘despite its obligation to protect persons against interferences in the enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis. By any measure of standards, its practice falls short of the minimum conduct expected of governments, and therefore, is in violation of Article 21 of the African Charter. [Source: Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol. 9, page 537. ]258 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol-9, page 537 259 Ibid-page 537260 Minors Oposa v. Department of Environment and Natural Resources, 33 I.L.M. 173 (1994). Available at: http://www.elaw.org/node/1343261 In this case the plaintiffs sought an order that the government discontinue timber licensing agreements, alleging that deforestation was causing environmental damage. The claim was based in part on a section of the Philippine Constitution which recognized the right of the people to a "balanced and healthful ecology in accord with the rhythm and harmony of nature. A unique feature of the claim is that it was brought on behalf of the "plaintiffs'" generation and "generations yet unborn

humanity. This right is so important that it can be claimed on behalf of future generations based on the concept of ‘intergenerational responsibility’. 262

In India, the Supreme Court in Subhash Kumar v. State of Bihar263 declared that the right to a wholesome environment was an integral part of the "right to life" proclaimed in Article 21 of the Indian Constitution. 264

In Nigeria the Federal High Court of Nigeria in Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd and Others. No. FHC/B/CS/53/05, (Nov. 14, 2005) 265 found that multinational oil companies, by flaring gas during exploration and production activities, violated the "fundamental rights to life including healthy environment and dignity of human person guaranteed by Sections 33(1) and 34(1) of the Constitution of the Federal Republic of Nigeria, 1999 and reinforced by Arts 4, 16 and 24 of the African Charter on Human and Peoples Rights." The court also ordered the respondents to take immediate steps to stop further flaring of gas in the community. 266

In Hungary, the right to healthy environment was considered very seriously by the Constitutional Court. The Court overturned a national legislation which was intending to privatize natural forests on the basis of a constitutional right to a "healthy environment.267 In Bangladesh, in Farooque v. Gov't of Bangladesh, 17 B.L.D.1997, (also known asFlood Action Plan Case) 268 the supreme of Bangladesh observed that every person has a right to live in a healthy

262 John Lee.(2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 318. 263 Subhash Kumar v. State of Bihar, (1991) 1 S.C.R. 5, 13 (India), Available at http://www.elaw.org/node/2751264 John Lee.(2000)‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 319. 265 Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd and Others. No. FHC/B/CS/53/05, (Nov. 14, 2005) Federal High Court of Nigeria, available at http://www.climatelaw.org/cases/case-documents/nigeria/ni-shell-nov05-judgment.pdf266 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol.9, page 538 267 Alkotmanybirosag Constitutional Court, No. 28/1994 (V.20), ABH. (1994) Available at http://www.elaw.org/node/2423.

environment. They also ruled that the government will ensure that environmental condition is not degraded by human activities.269

The above analysis shows that the national courts are also recognizing that environmental degradation can sometimes affect the enjoyment of human rights. This recognition is very important for vulnerable victims of the effects of climate change. Because environmental degradation is one of the major impacts of climate change which inevitably threaten the full enjoyment of all basic human rights. So it can be argued that since the national courts are recognizing the impacts of degrading environment on the enjoyment of human rights, they are also ready to recognise the impacts of climate change on the full enjoyment of basic human rights. In other word, they are likely to recognise human rights-based approach to climate change.

It is time to hope and believe that jurisprudence of environmental rights could be enlisted in the fight against the violation of human rights caused by the impacts of climate change. 270 4.8 Possible Effective Role of the United Nations in Protecting Human Rights Threatened by the Effects of Climate Change

It has already been analysed that the effects of climate change threaten basic human rights enshrined in United Nations human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) 1966 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966. Referring to article 26 of the Vienna Convention on the Law of Treaties-1969 which states that ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith’271, human rights lawyers argue that these two covenants are legally valid 272 —that is, enforceable—with regard to the countries that ratified it. 273

268 Farooque v. Gov't of Bangladesh, 17 B.L.D. (AD) 1, 1997, 1 B.L.C. (AD) 189 (1996) (Flood Action Plan Case), Available at http://www.elaw.org/node/1300.269 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law. vol.9, page 540270 Ibid-page 540 271 This obligation is also known as “Pacta sunt servanda”272 Publication of American Association for the Advancement of Science. ‘An Overview of the International Bill of Rights.’ Available at: http://shr.aaas.org/escr/handbook/chap01.htm

Article 2(2) 274 and 2(3)(a) of the ICCPR, imposes obligations on states parties to adopt such measures as may be necessary to give effect to the rights recognised in the ICCPR itself.275 Article 2(1) 276 of the ICESCR also imposes obligations on state parties to implement or enforce rights enshrined in ICESCR.

Following the above study, it is clear that the above mentioned provisions of ICCPR and ICESCR impose obligations on states to take all measures to ensure the full enjoyment of human rights.

It is obvious that human rights such as the right to life, to food, to water, to health and rights of indigenous people are enshrined in ICCPR and ICESCR and they are threatened by the impacts of human-induced climate change.

In this situation, it can be argued that states are obliged under the provisions of ICCPR and ICESCR to take all measures to ensure the full enjoyment of the above mentioned human rights and accordingly if they do not take any measure to prevent or reduce the impacts of climate change on the enjoyment of these human rights, they are more likely to be liable for human rights violations under United Nations human rights regime.

In addition, under the First Optional Protocol to the International Covenant on Civil and Political Rights 1976 (ICCPR) and the Optional Protocol to the International Covenant on Economic, Social and Cultural 273 152 states are parties to the Covenant on Economic, Social and Cultural Rights, (66 signatories):155 states are parties to the Covenant on Civil and Political Right(67 signatories).274 These articles state that “each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”275 Justice Ronald Sackville, Judge, Federal Court of Australia (2004). Keynote Speech on ‘Homelessness, Human Rights and Law.’ Available at : http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_sackvillej12.rtf276 Article 2(1) of the ICESCR states that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

Rights 2008 277 (ICESCR) an individual, after exhausting all available domestic remedies, may complain to the United Nations Human Rights Committee or the Committee on Economic, Social & Cultural Rights 278

that his or her rights under the ICCPR or ICESCR have been breached. The Committee then investigates the matter and gives the opinion. These opinions of the committee are much like judicial decisions and the governments concerned is agreed to be legally bound by these decisions.279

In Ivan Kitok   v   Sweden 280 the Human Rights Committee considered a complaint by an indigenous person from Sweden relating to the right to carry out reindeer husbandry. The Committee found the violation of article 27 of ICCPR and Sweden followed this decision.

In Ominayak v   Canada , 281 the Human Rights Committee found a Canadian Government lease over Indian land violated article 27, where the lease was to be used for commercial timber activities, on the grounds that this could destroy the traditional life of the Lubicon Lake group.282 Canada also followed the decision of the committee.

277 On December 10th, 2008, on the 60th anniversary of the Universal Declaration of Human Rights, the United Nations General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). Optional Protocol has been opened for signature in March 2009.278 Article 2 and 5(2)(b) of First Optional Protocol to ICCOR and article 2 and 3 of the optional protocol to ICESCR.. The provisions of these two protocols state that individuals who claim that any of their rights enumerated in these Covenants have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration 279 Kevin Donegan. (2009) ‘What is the new UN Optional Protocol on Economic, Social and Cultural Rights?’ Center for Economic and Social Justice: social justice through human rights. Available at: http://www.cesr.org/article.php?id=321280United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988).281United Nations Human Rights Committee, Report of the Human Rights Committee, Communication No 167/1984, UN Doc A/45/40 (1990) 282 Gillian Triggs.( 1999 ) ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1988 (CTH). Melbourne University Law Review, vol. 16, page 75.

Form the above analysis it can be asserted that though the concern of human rights violation caused by the effects of climate change is a new phenomenon in international human rights regime, there is a possibility that human rights violations caused by the impacts of human-induced climate change can be remedied by the United Nations frameworks very soon.

Chapter 5: Advantages of Human Rights-Based Approach to Climate Change

Climate change impacts on human rights are not something that will occur, but rather they are already occurring, and severe human victims of climate change already exist, making the predicament of human populations of climate change of the uttermost importance to treat today; 283

283 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’ Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf

Human rights-based approach to climate change284can help shift the focus of international debate on climate change more directly onto individuals and the effects of climate change on their lives.285

Main advantageous of human rights-based approach to climate change have been discussed below:

5.1 Adaptive Measures are Humane, Fair and Equal: A human rights-based approach to climate change provides a conceptual framework for climate change policies which is normatively based on international human rights standards and practically directed to promoting and protecting human rights.286

Accordingly if any measure is adopted to deal with the impacts of climate change, under human rights-based approach to climate change, adaptation measures would be focused on protecting human rights.

For example, human rights-based approach will ensure that homes are resistant to extreme weather conditions to protect the right to life and that alternative water access is offered, when the effects of climate change reduce water supply, to protect the right to water. This approach will also persuade government to offer health-related information and education on climate change and to provide proper sanitation to protect the right to health. 287

By focusing on individuals as rights-holders, this approach places obligations on governments to include participation of the poorest and most marginalized groups in the community with sensitivity to social and cultural context, into the development of transparent climate change policies. For example, if it is necessary to forcibly relocate communities in disaster or flood-prone areas, a human rights-based approach to such policy would require a thorough and proper

284 Mary Robinson. (2008) Climate Change Is an Issue of Human Rights, INDEPENDENT (London), Dec. 10, 2008, available at http://www.independent.co.uk/opinion/commentators/mary-robinson-climate-change-is-an-issue-of-human-rights-1059360.html285 Marc Limon. (2009) ‘Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no-2, page 451286 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page 161-180287 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The University of New South Wales Law Journal vol.31, no.3, page 959.

consultation with the affected communities to ensure that its impact was tolerable and proportionate. 288

Regarding adaptation measures, considering competing demands on limited resources, human rights approach provide thresholds of minimum acceptability and ensure that the impacts of adaptation and mitigation measures on individuals are equal and fair.289

For example if the result of an adaptation measure is that indigenous people are going to be disproportionately affected, human rights-based approach to climate change will assert that the adaptation measure is unfair and required to be readjusted. 290

This approach also pressurizes government291to use all means available to it to prevent and address the threats to human rights caused by climate change and to provide access to remedies when these rights are violated.292

In addition, under a human rights-based approach the substantive elements of any new adaptation measure would need to ensure that the fundamental rights of everyone affected by the measure were taken into account. Human rights standards would guide policymakers and legislators when weighing competing demands on limited resources; helping to ensure, for example, that budget allocations prioritize the most marginalized and disadvantaged.293

‘The authoritative General Comments of the Human Rights Treaty Bodies are a useful articulation of the content of some of the key human rights affected by climate change and provide a basis for developing the standards and measures to apply when evaluating whether a particular policy meets its human rights requirements. For example under Economic and Social Council General Comment No. 15 288 John von doussa. (2008) ‘Climate Change and Human Rights’ centre for policy development, Sydney , Australia. Available at: http://cpd.org.au/article/climate-change-and-human-rights289 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The University of New South Wales Law Journal vol 31, no.3, page 960.290 Ibid-page 961.291 UN Human Rights Committee, General comment No. 31 – Nature of the General Legal Obligation  imposed on State Parties to the Covenant (2004) CCPR/C/21/Rev.1/Add.13, at Para 15. Available at: http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument292 John Von Doussa, Allison Corkery, Renee Chartres. (2007) ‘Human Rights and Climate Change’. Australian International Law Journal vol.14, page 161-180293 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The University of New South Wales Law Journal vol. 31, no. 3, page 961

– The right to water, the relocation of a community would have to ensure that the minimum requirements of fresh water (currently calculated by the World Health Organisation at 7.5 litres per day294) would be physically and financially available to every adult and child, and that it would be accessible to all without discrimination on the grounds of sex, age, or economic or social standing, and that personal security is not threatened when having to physically access to water.295

Similar core obligations resting on governments have been specified in other General Comments 296 in relation to the rights to food, health and adequate housing such as CESCR, General Comment No.12 – The Right to Adequate Food (1999); CESCR, General Comment No.4 – The Right to Adequate Housing (1991); and CESCR, General Comment No.14 – The Right to the Highest Attainable Standard of Health (2006).’297

Under human rights approach, the above human rights obligations of human rights instruments will help to mitigate the impacts of climate change on vulnerable communities.

5.2 Encouraging International Co-operation: Some scholars argue that since climate change does not yet have adequate legal support in international arena, the effects of climate change on vulnerable communities can only be effectively addressed through cooperation of all members of the international communities.298

Human rights-based approach to climate change has this potential to deal with the human dimensions of climate change by emphasizing international cooperation. Human rights frameworks such as the U.N.

294 This figure is for total consumption i.e. drinking water plus water for foodstuffs preparation. [Source: Howard and Bartram.(2003) Domestic Water Quantity, Service Level and Health, WHO, at Page 9. Available at: http://www.who.int/water_sanitation_health/diseases/en/WSH0302.pdf295 Economic and Social Council General Comment No. 15 – The right to water (2002) at Para.37. Available at: http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument296 General Comments of Committee on Economic, Social and Cultural Rights. Office of the United Nations High Commissioner for Human Rights Available at: http://www2.ohchr.org/english/bodies/cescr/comments.htm297 John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The University of New South Wales Law Journal vol.31, no. 3, page 961-962.298 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2 page 452

Charter299 the International Bill of Human Rights300 and other human rights instruments contain languages that emphasize international cooperation.301

For example, the Committee on Economic, Social and Cultural Rights, in General Comment 3 302 states that:‘in accordance with Articles 55 and 56 of the Charter of the United Nations303, with well-established principles of international law, and with the provisions of the Covenant304 itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States.’ 305

While this General Comment was not written with climate change in mind, the obligations that it identifies are clearly applicable to the case

299 Article 1(3) of United Nations Charter states that the purposes of the United Nations are “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. Available athttp://www.un.org/en/documents/charter/chapter1.shtml300 The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) are together called International Bill of Human Rights.301 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no-2, page 452 302 UNCESCR General Comment 3: The Nature of States Parties Obligations, (Art. 2, para. 1 of the Covenant U.N. Doc. E/1991/23 (Dec. 14, 1990). Available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument303 International cooperation to promote and protect human rights lies at the heart of the Charter of the United Nations. The importance of such cooperation is explicitly stated in provisions of the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and in the Declaration on the Right to Development. [Source: Marc Limon. (2009) ‘Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2 page 453 ]304It is worth recalling that each state that has ratified the ICESCR has a duty to respect, protect, and fulfil the rights laid down in that treaty for those coming within their jurisdiction, and these duties have their own specific scope under the treaty. The obligation to respect a right means the state must take no steps that would violate that right; the obligation to protect requires states to act to ensure that other actors, including private and international actors, are not permitted to violate the right; the obligation to fulfil requires that states take steps over time to progressively realize citizens’ rights to food, shelter, health, and so on. [Source: The State Obligation to Respect, Protect and Fulfill ICESCR Rights. International Commission of Jurists, Available at: http://www.icj.org/IMG/pdf/7.pdf ]305 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 454

of climate change, at least in the case of international cooperation on adaptation (i.e., a positive obligation to render assistance) and, quite probably, on mitigation (i.e., a negative obligation to reduce emissions). 306

OHCHR analytical report on climate change and human rights also suggests that all states that are party to the ICESCR have a legal obligation through international cooperation (i.e., the UNFCCC process) to reduce emissions to levels consistent with the full enjoyment of human rights (i.e., safe levels) in all other countries (especially vulnerable countries), to fund adaptation measures in vulnerable countries (depending on the availability of resources), and to ensure that the international climate change agreement due to be penned at COP 15 in Copenhagen is consistent with those human rights obligations and, at the very least, does not adversely impact human rights. 307

5.3 Pathway for International Assistance: Poor vulnerable communities have very weak social and economic condition. So they cannot easily adapt or mitigate the types of impacts caused by climate change and they are more affected by the impacts of climate change308when they have contributed the least to this problem.309

In this situation human rights approach to climate change will help draw attention to such predicaments, and create more leverage for vulnerable states to gain international development assistance and political agenda priority310 to help underwrite the cost of climate-change-related weather damage (e.g., the cost of building seawalls) or establish special funds to build coastal defenses, protect fresh water supplies, and develop new forms of agriculture.311

306 Ibid-page 454 307 Ibid-page 455308 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’ Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf309 Bridget Lewis. (2008) Climate change and human rights : perspectives of environmental and indigenous rights. Journal of The Australasian Law Teachers Association. vol.1, no.1 & 2. page154 310 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’ Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf311 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 260

Thus human rights approaches to climate change will help to protect and prevent future violations of human rights that shall occur amongst vulnerable because of climate change; 312

5.4 Recognition of Procedural Human Rights: Human rights based approach to climate change recognizes procedural human rights in regard to the effects of climate change. This procedural human rights also includes the right to access to information and the right to participate in decision making and the right to have access to justice in environmental matters.These procedural human rights were first formulated in principle 10 of the Rio Declaration.313 They can be a powerful tool for combating climate change through litigation. 314

Procedural rights are also included in the U.N. Framework Convention on Climate Change. Article 6 315 requires Parties to promote and facilitate at the national and, as appropriate, subregional and regional levels . . . public access to information on climate change and its effects; and public participation in addressing climate change and its effects and developing adequate responses.316

312 Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’ Centre for Human Rights and Environment. ( CEDHA ) Page-14. Available at:http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf313 Principle 10 of Rio Declaration on Environment and Development 1992 states that Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. Available at: http://www.unep.org/Documents.Multilingual/Default.asp?documentID=78&articleID=1163314 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law. vol.9, page 541 315 Article 6 of UNFCCC states that “State arties shall promote and facilitate at national level (i) public access to information on climate change and its effects (ii) Public participation in addressing climate change and its effects and developing adequate responses.”Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf316 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol.9, page541.

The procedural human right to information 317 may well have an important future in disputes where access to information related to climate change is denied to the public. 318

Public access to information on climate change and its effects is very important to assess the actions or inactions of governments and the emissions of polluting industries. 319

Procedural human rights to public participation also open the door to citizens for lobbying governments for the adoption of needed regulations and measures to combat climate change. 320

The U.N. Framework Convention on Climate Change requires public participation in addressing climate change and its effects and developing adequate responses. This provision of the Convention can be used in various ways, including to demand participation in the environmental assessment of certain projects and activities that emit GHGs contributing to climate change. 321

Under this right the public will have an opportunity to participate in assessment of the impact of climate change of any project and raise comments. The resultant public outcry may halt a project which is detrimental to climate and communities. In addition where institutions ignore requirements for public participation in decisions that may

317 Public access to information has already been recognized as basic human rights. In Europe. in 1996 the Parliamentary Assembly of the Council of Europe (PACE), with the passage of the Resolution of 1087, took an important step in the recognition of the right to information as a human right. Resolution 1087 on the Consequences of the Chernobyl Disaster stated that "the Assembly believes that public access to clear and full information on this subject--and many others for that matter--must be viewed as a basic human right. In Europe, the Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters recognizes not only the right of the public to receive information upon request (article 4), but also the duty of the government to collect and disseminate information (article 5). [Source: Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law, vol. 9, page 542 ] 318 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol. 9, page 545.319 Ibid-page 541 320 Ibid-page 541 321 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol. 9, page 545

affect the climate, court actions challenging the decisions as illegal may give this procedural right an important role in overturning them. 322

Right to have access to justice for citizens and nongovernmental organizations ensures that if governments or industries fail to comply with measures that are adopted, the violations can be brought to the attention of the courts. 323

5.5 Recognition of the Right to Self-determination Because of the effects climate change, many island states in the world may be wiped out of world map. But the two major international frameworks on climate change the UNFCCC and the Kyoto Protocol both consciously ignore issues pertaining to the potential loss of sovereignty or statelessness caused by climate change-related impacts. 324

Such an omission is extremely serious, especially when one considers that the citizens of many small island states, including Tuvalu, Vanuatu, the Maldives, and the Marshall Islands, are facing this possibility of becoming environmental refugees during the present century.325

Human rights approaches can potentially help fill this important gap in the existing international climate change regime.326

For example, article 1 of both ICCPR and ICCESCR clearly recognize the right to self determination. In addition, the Human Rights Committee in its General Comment 12 327 and Article 2 of the ICCPR imposes an obligation on the international community to take positive action toward the realization of the right to self-determination, regardless of

322 Ibid-page 547 323 Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol. 9, page 541 324 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review , vol. 33, no.2, page 455325 Ibid-page 456326 Ibid-page 455327 OHCHR, Human Rights Committee [CCPR], General Comment 12: The Right to Self-Determination of Peoples, (Mar. 13, 1984), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f3c99406d528f37fc12563ed004960b4?Opendocument.

whether a people are located within the territory or jurisdiction of a particular state. This is suggestive of a positive obligation upon industrialized countries to protect the sovereignty of Small Island States by taking meaningful action to cut greenhouse gases before such states are rendered uninhabitable.328

5.6 Reformulation of Existing Human Rights Customary international law principles which originated before environmental problems such as climate change entered the legal discourse, has been largely ineffective in addressing the mitigation of, and adaptation to, climate change impacts on human life. Even current international environmental law does not adequately protect human life and dignity from the threats associated with the impacts of climate change and environmental degradation. 329

In this situation victims of the effects of climate change can benefit from a human rights-based approach to climate change because reformulating existing human rights obligations in the context of the impacts of climate change and environmental degradation would garner more effective environmental protection by taking advantage of existing international and regional monitoring and enforcement mechanisms, which are more developed in the human rights arena than they are in the environmental arena. 330

Thus we may be able to establish a legal basis for holding states responsible for damage caused by the effect of climate change and equally states may be held liable for damage to the environment caused by inadequate regulation of greenhouse gas emissions.

5.7 Vocalisation of Affected People’s Concern: Using a human rights framework helps amplify the voices of those who are disproportionably affected by climate change — the poor, marginalized, and vulnerable people including women, children, indigenous groups, and the old who might otherwise not be heard and who, if empowered to do so, could make an important contribution to improving climate change policy.331

328 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 456.329 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review. vol. 30, page 259 330 Ibid- page 259 331 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 451

Chapter 6: Criticisms of Human Rights-Based Approach to Climate Change and Its Response

6.1 Problem of Subjective Valuation of Some Rights Over Others: Some critics claim that one of the majors theoretical problems to a human rights-based approach to climate change is that it may require subjective valuation of some rights over others. 332

Comparing the conditions between Inuit, Maldives, Marshall Island and Russia, Iceland and Canada, they argue that climate change may threaten the basic human rights of some individuals and groups but at the same time it may be beneficial for others.333

They mention that though it is true that melting of sea ice raises the sea level and threatens the lives and livelihoods of the Inuit and Small Island States such as the Maldives, Tuvalu and Marshall Island, the melting of sea ice also could open up new sea routes for Russia, Iceland, and Canada, and parts of Russia might benefit from an increase in crop yields. 334

Critics question if the Inuit and Small Island States have a human right to life, shelter, food, water and health, do not the people of Russia and Iceland have an equal right to development? 335

However in response to the above argument it can be argued that highlighting the so-called ‘benefits’ of climate change is cunning.

Melting sea ice and higher temperature may increase crop yields in some part of Russia, Canada and Iceland but this increase in yields could be more than offset by decreases in yields in some part of those countries caused by drought and higher temperatures. In addition, in Africa, South East Asia and some tropical areas, higher temperature will reduce agricultural productivity because temperatures there are already almost as high as many crop plants can tolerate and as a result crop yields in those areas will decrease disastrously putting

332 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review. vol. 30, page 262 -263 333 Ibid-page 262 -263 334 Ibid-page 262-263335 Ibid-page 262 -263

million of people at risk of hunger and malnutrition and accordingly threatening their basic human rights to food and life. 336

Scholars also argue that dangerous climate change is attributed directly or indirectly to human activities on all over the world. The effect of climate change is global as well. In this situation, it is very inhuman to suggest that using the effect of climate change some part and communities of the world will improve their condition and enjoy the right to development whereas some part and communities of the world will struggle to survive and their basic human rights to life, to food, to shelter, to water and to health would be jeopardized by the impacts of climate change. So globally any "benefit" of climate change will be offset by an equal or greater harm. 337

6.2 Impractical and Unwise Approach: Critics claim that climate change is a highly complex environmental issue, characterized by a long chain of steps between the initial human activities that produce greenhouse gas emissions and the eventual physical impacts that may result from those emissions. They argue that a complex global environmental problem with these characteristics does not lend itself to human rights-based solutions and any movement “toward a human rights-based approach to climate protection are both impractical and unwise.338

Though these arguments have some merit, they are not yet conclusive. They reflect a one-dimensional view of the potential conceptual linkages between climate change and human rights. 339 They are based on the premise that a central purpose of human rights law is to provide remedies for the victims of specific rights violations.340

This framework requires identifiable violations, and identifiable harms attributable to the violations 341

336 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 262 -263.337 Ibid-page 262 -263.338 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2, page 457339 Ibid- page 457340 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review , vol. 33, no.2, page 457341 Ibid-page 457.

However, human rights should not only be seen as a way of seeking redress for what has happened, but as a forward-looking means of encouraging the evolution of, and providing a qualitative contribution to, robust, effective, and sustainable policy responses at both the national and international level, across mitigation and adaptation. As Kyung-wha Kang has noted, ‘human rights supply not only legal imperatives, but also a set of internationally agreed values around which common action can be negotiated and motivated.’342

It is in this progressive sense that the contemporary value of linking human rights and climate change is to be found and the various benefits of a human rights approach, come to the fore. 343 Seen in the broader sense as a set of values and norms from which to draw inspiration, a human rights-approach can potentially add much value to the existing politico-scientific climate change discourse. 344

6.3 Anthropocentric Attitude to Environmental Problems: Critics claim that a human rights approach could lead to an anthropocentric attitude to environmental problems, instead of looking at the aggregate impacts on species and the environment.345

They insist that the environment itself also possesses inherent rights derived from its own value, distinct from human use of the environment. 346 However their claim has no real merit. Even from human rights perspective if a real progress is made on the problem of climate change, it will also inevitably benefit humans, other species, and the environment. How the problem is viewed and progressed are somewhat irrelevant.347

6.4 Undermining UNFCCC and IPCC: Critics claim that the climate change response process, led by the IPCC and the UNFCCC, is 342 Ibid-page 458343 This is not to say that human rights should not also eventually be used as an accountability framework for addressing harm, responsibility, and redress. However, at present, human rights law, which is overwhelmingly understood as a national contract between citizen and state, is not geared to this utility.344 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review , vol. 33, no-2, page 458345 Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law? Georgetown International Environmental Law Review vol.10, page 309-397.346 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review. vol. 30, page 263 347 Ibid-page 263

dominated in general by experts in the physical sciences. Consequently, there is an almost complete lack of understanding of human rights systems and their potential value within the IPCC and, more importantly, within the UNFCCC process.348 Critics claim that if human rights based approach to climate change is adopted, the international human rights machinery might replace or undermine the UNFCCC process which was established to reduce the green house gas emission. So undermining the role of UNFCCC in fact will undermine the efforts to reduce the impact of climate change on human being. Instead of doing something effective to reduce the impact of climate change, human rights might be used as some kind of political or legal football between North and South.349

However this is not the case, it is clear that human rights thinking have the potential to strengthen and complement the IPCC and UNFCCC processes, rather than undermine, endanger, or replace them. As the OHCHR notes in its report, “international human rights law complements the UNFCCC by underlining that international cooperation is not only expedient but also a human rights obligation and that its central objective is the realization of human rights, and, in the context of those negotiations, “human rights standards and principles should inform and strengthen policy-making . . . promoting coherence and sustainable outcomes.” 350

6.5 Uncertainty of Post-Kyoto Agreement: Critics raised a more tactical concern that because of human rights approach to climate change, most polluter countries are less likely to sign up the post-Kyoto climate change framework to strict emission reduction targets for fear that, if they were to fail to reach those targets, they might leave themselves open to litigation. 351 The developed countries may fear that individuals or even countries that have suffered or will suffer harm could use any officially recognized linkages between human rights and climate change as a political or legal weapon against them.352

348 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 459.349 Ibid-page 462350 Ibid-page 462351 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review , vol. 33, no. 2 page 460352 Ibid-page 461

However this criticism is not reasonable because even the people of rich and polluter country are also victim of climate change. So the leader of these countries would also be concerned about the effects of climate change and accordingly they are very likely to sign up post-Kyoto agreement to reduce greenhouse emission. 6.6 Impairing Serious Human Rights Issues: Some critics argue that labeling certain climate change impacts as human rights issues may impair the importance of the protection of "serious" human rights issues such as genocide and crimes against humanity.353

However now it is established by scientific evidence that climate change has catastrophic impacts on human life. So human rights related to climate change are also a serious human rights issue. In addition utilizing the human rights framework to address climate change would not undermine other human rights efforts rather by encouraging debate on this issue it will help to develop the jurisprudence of human rights law.354

However finally it can be said that although the various theoretical or practical arguments has been put forward to argue against action on linking climate change with human rights, they are most likely to be invalid because they have no merit. Moreover they are based on a fundamental misconception of the potential value and utility of human rights. 355

353 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review. vol. 30, page 263 354 Ibid-page 263 355 Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 462

Chapter 7: Conclusion

Though climate change is a real threat to humanity, to date it has been regarded only as a scientific problem. Human rights discourse is an attempt to convert climate change from a scientific problem into a substantial and actionable humanistic problem.

In this regard human rights regime can be seen as a promising avenue for addressing the social effects of climate change. Human rights provide both a language and specific legal mechanisms through which climate actions can be analyzed and implemented.

International human rights regime can be used by marginalized and vulnerable groups to make moral and legal claims that would force industrialized nations to limit their own carbon emissions and provide assistance for marginalized and vulnerable groups to adapt to climate change. 356

However uncertainty and ambiguity may pose problems in human rights-based approach to climate change. In this regard, human rights scholars states that most human rights confronted similar hurdles in the early articulation of these rights, particularly economic, social, and cultural rights. These problems also plagued early debates on the right to environment, which has since gained increasing support and legitimacy. The field of human rights must evolve, and the innovation and pioneering of new idea of human rights and theories will always suffer from initial skepticism. 357

356 Dan Chong and Simon Nicholson.( 2008) ‘From Knowledge to Action: Applying a Rights-Based Approach to Global Climate Change.’ Page-1-17. Conference paper of International Studies Association. Available at: http://www.allacademic.com/one/prol/prol01/index.php?cmd=prol01_search&offset=0&limit=5&multi_search_search_mode=publication&multi_search_publication_fulltext_mod=fulltext&textfield_submit=true&search_module=multi_search&search=Search&search_field=title_idx&fulltext_search=From+Knowledge+to+Action%3A+Applying+a+Rights-Based+Approach+to+Global+Climate+Change357 Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review. vol. 30, page 264

Bibliography

Books:

1. A Barrie Pittock. (2007) Climate Change : Turning up the Heat. CSIRO Publishing, Australia. Page 1-22, 84- 206, 245-294.

2. Robert Henson. (2006) The Rough Guide to Climate Change. Rough Guide Ltd, 80 Strand, London. Page 3-140.

3. Michael R. Anderson. (1998) Human Rights Approaches to Environmental Protection: An Overview in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to Environmental Protection. Clarendon Press, Oxford. Page 1-23.

4. J. G. Merrills. (1998) Environmental Protection and Human Rights: Conceptual Aspects in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to Environmental Protection. Clarendon Press,Oxford.Page 25-41.

5. Alan Boyle. (1998) The Role of International Human Rights Law in the Protection of the Environment in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to Environmental Protection. Clarendon Press, Oxford. Page 43-69.

6. Robin Churchill. (1998) Environmental Rights in Existing Human Rights Treaties in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to Environmental Protection. Clarendon Press, Oxford. Page 89-108.

7. James Cameron and Ruth Mackenzie. (1998) Access to Environmental Justice and Procedural Rights in International Institutions in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to Environmental Protection. Clarendon Press, Oxford. Page 129-152.

8. Adriana Fabra. (1998) Indigenous Peoples, Environmental Degradation and Human Rights: A Case Study in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to

Environmental Protection. Clarendon Press, Oxford. Page 245-263.

9. Catherine Redgwell. (1998) Life, the Universe and Everything: A Critique of Anthropocentric Rights in Alan Boyle and Michael Anderson (ed) Human Rights Approaches to Environmental Protection. Clarendon Press, Oxford. Page 71-87.

10. Understanding Climate Change Feedbacks (2003) by National Research Council of the National Academies. The National Academies Press, Washington D.C. Page 21-75.

11. Margot Wallstrom. (2003) Meeting the Long Term Challenge of Global Warming: A European Perspective, in David Michel,( ed.) Climate Policy for the 21st Century: Meeting the Long-term Challenge of Global Warming. Center For Transatlantic Relations, Johns Hopkins University, Washington, D.C. Page 17-25. 36-47.

12. Doyle, Michael and Ann Marie Gardner, (2003) Introduction: Human Rights and International Order in Jean-Marc Coicaud, Michael W. Doyle, and Ann Marie Gardner, (eds.), The Globalization of Human Rights, United Nations University, Tokyo, Japan. Page 89-100.

13. Nickel, James. (1987) Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights. Berkeley; University of California Press. Page 561-2.

14. Russell Hittinger. (1994) ‘Natural Law and Virtue : Theories at Cross Purposes’ published in Natural Law Theory Contemporary Essays edited by Robert p George. Clarendon press, Oxford. Page 63

15. Raymond Wacks. (2005) Understanding Jurisprudence : an Introduction to Legal Theory. Oxford University Press. Oxford. Page 15, 23-24.

16. Bodansky, Dan, Jutta Brunnée, and Ellen Hey.(2007) The Oxford Handbook of International Environmental Law. Oxford University Press, Oxford.

17. Ian Brownlie. (1988) The Rights of Peoples in Modern International Law in James Crawford (ed), The Rights of Peoples. Clarendon Press, Oxford. Page 1-16.

18. Garth Nettheim. (1988) ‘Peoples’ and ‘Populations’ : Indigenous Peoples and the Rights of Peoples in James Crawford (ed), The Rights of Peoples. Clarendon Press, Oxford. Page 107-126.

19. Henry J. Steiner, Philip Alston, Ryan Goodman. (2008) International Human Rights in Context. Oxford University Press, Oxford. Page 263-275, 314-319,1442-1458.

20. Nickel, James. (1987) Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights. Berkeley ; University of California Press. Page 561-2.

21. A Belden Fields (2003) Rethinking Human Rights for the New Millennium. Palgrave, New York.

Articles and Journals:

1. Siobhan McInerney-Lankford. (2009) ‘Climate Change and Human Rights : An Introduction to Legal Issues.’ Harvard Environmental Law Review vol. 33, no. 2, page 431-437

2. Marc Limon. (2009) ‘Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no.2, page 439-476.

3. John H. Knox. (2009) ‘Linking Human Rights and Climate Change at the United Nations.’ Harvard Environmental Law Review vol.33, page 477-498.

4. Anne Parsons. (2009) ‘Human Rights and Climate Change: Shifting the Burden to the State?’ Sustainable Development Law & Policy vol. 9, no. 2, page 22-23.

5. Mark Stallworthy.(2009) ‘ Environmental Justice Imperatives for an Era of Climate Change.’ Journal of Law and Society vol. 36, no.1, page 55-74.

6. Jessie Hohmann. (2009) ‘Igloo as Icon: A Human Rights Approach to Climate Change for the Inuit?’ Transnational law & Contemporary Problems vol. 18, no. 2, page 296-316

7. John Von Doussa. (2008) ‘Human Rights and Climate Change: A Tragedy in the Making.’ The University of New South Wales Law Journal vol.31, no.3, page 953-964.

8. Svitlana Kravchenko.(2007-2008) ‘ Right to Carbon or Right to Life :Human Rights Approaches to Climate Change’. Vermont Journal of Environmental Law vol 9, page 513-547.

9. Amy Sinden. (2007) ‘Climate Change and Human Rights.’ Journal of Land Resources and Environmental Law vol.27, no 2, page 255-271.

10. John Von Doussa, Allison Corkery, Renee Chartres.(2007) ‘ Human Rights and Climate Change.’ Australian International Law Journal vol.14, page161-180.

11. Simon Caney. (2008) ‘Human Rights, Climate Change, and Discounting’. Environmental Politics vol. 17, no. 4, page 536–555.

12. Joanna Harrington. (2006-2007) ‘Climate Change, Human Rights and the Right to be Cold.’ Fordham Environmental Law Review vol. 18, page 513-535.

13. Bridget Lewis. (2008) ‘Climate Change and Human Rights : Perspectives of Environmental and Indigenous Rights.’ Journal of The Australasian Law Teachers Association vol.1, no.1 & 2, page 153-161.

14. Stephen L. Kas.(2009) ‘Integrated Justice: Human Rights, Climate Change, and

Poverty.’ Transnational law & Contemporary Problems vol. 18, no.1, page 115- 138

15. Sara C. Aminzadeh. (2007) ‘A Moral Imperative: The Human Rights Implications of Climate Change’. Hastings International and Comparative Law Review vol. 30, page 231-265.

16. Dave Owen. (2008) ‘Climate Change and Environmental Assessment Law.’ Columbia Journal of Environmental Law vol.33, page 58-119

17. Eric A. Posner. (2006-2007) ‘Climate Change and International Human Rights Litigation: A Critical Appraisal.’

University of Pennsylvania Law Review vol. 155, page 1925-1945.

18. John C. Dernbach and Seema Kakade. (2008) ‘Climate Change Law: an Introduction.’ Energy Law Journal vol.29, no.1 , page 2-31

19. Daniel A. Farber.(2008) ‘ The Case for Climate Compensation : Justice for Climate Change Victims in a Complex World.’ Utah Law Review no. 2, 2008. page 377-397

20. Joyeeta Gupta. (2007) ‘Legal Steps outside the Climate Convention: Litigation as a Tool to Address Climate Change.” Review of European Community & International Environmental Law (RECIEL) vol.16, no. 1, page 76–86.

21. Simon Caney. (2006) ‘Cosmopolitan Justice, Rights and Global Climate Change.’ Canadian Journal of Law and Jurisprudence vol.19, no. 2, page 255-278.

22. Alan Boyle.(2006-2007) ‘Human Rights or Environmental Rights ? A Reassessment. ’Fordham Environmental Law Review vol. 18, page 471-511.

23. Meinhard Doelle. (2004) ‘Climate Change and Human Rights: The Role of the International Human Rights in Motivating States to Take Climate Change Seriously’. Macquarie Journal of International and Comparative Environmental Law, vol.1, no-2, page 179-216.

24. Eric A. Posner & Cass R. Sunstein. (2008) ‘Climate Change Justice.’ Georgetown Law Journal vol.96, page 1565-1597

25. Stephen Tully. (2007) ‘The Contribution of Human Rights as an Additional Perspective on Climate Change Impacts within the Pacific.’ New Zealand Journal of Public and International Law vol. 5, page 169-200.

26. Kevin Healy and Jeffrey M. Tapick. (2004) ‘Climate Change: It’s Not Just a Policy Issue for Corporate Counsel—it’s a Legal Problem.’ Columbia Journal of Environmental Law vol. 29, page 89-118

27. Scott, Shirley V. (2007) ‘Is the Crisis of Climate Change a Crisis for International Law: is International Law too Democratic, too Capitalist and too Fearful to Cope with the Crisis of Climate Change?’ Australian International Law Journal vol.14, page 31-44.

28. Jedediah Purdy. (2007-2008) ‘Climate Change and the Limits of the Possible.’ Duke Environmental Law and Policy Forum vol.18, page 289-305.

29. Jonathan C. Carlson.(2009) ‘Reflections on a Problem of Climate Justice: Climate Change and the Rights of States in a Minimalist International Legal Order.’ Transnational Law & Contemporary Problems vol. 18, no. 1, page 45-68

30. Roda Mushkat. (2009) ‘Contextualizing Environmental Human Rights: A Relativist Perspective.’ Pace Environmental Law Review vol. 26, page 119-177.

31. Ling- Yee Huang. (2008) ‘ Not Just Another Drop in the Human Rights Bucket: the Legal Significance of a Codified Human Right to Water.’ Florida Journal of International Law vol. 20, page 351-370.

32. Laura Westra. (2009) ‘Ecological Integrity and Biological Integrity: the Right to Life and the Right to Health in Law.’ Transnational Law & Contemporary Problems vol. 18, no. 1, page 3-43.

33. Owen Cordes-Holland. (2008) ‘The Sinking of the Strait :The implications of climate change for Torres Strait Islanders' Human Rights Protected by the ICCPR.’ Melbourne Journal of International Law vol.9, page 406-438

34. Randall S. Abate. (2007) ‘Climate Change, the United States and the Impacts of Arctic Melting : A Case Study in the Need for Enforceable International Environmental Human Rights.’ Stanford Environmental Law Journal vol.26, page 3-76.

35. Tim Hayward. (2007) ‘Human Rights Versus Emissions Rights: Climate Justice and the Equitable Distribution of Ecological Space.’ Ethics & International Affairs vol. 21, no. 4, page 431-450.

36. Séverine Fiorletta Lero. (2006) ‘Can the Human Rights Bodies be Used to Produce Interim Measures to Protect Environment-Related Human Rights?’ Review of European Community and International Environmental Law vol.15, no.1,page 66-81.

37. Anja Meyer. (2001) ‘International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge.’ Review of European Community and International Environmental Law vol.10, page 37-46.

38. Chris Miller. (2003) ‘Environmental Rights in a Welfare State ? A Comment on Demerieux.’ Oxford Journal of Legal Studies vol. 23, no.1, page 111-125.

39. Malgosia Fitzmaurice. (2002) ‘Some Reflections on Public Participation in Environmental Matters as a Human Right in International Law.’ Non-State Actors and International Law vol. 2, page 1–22,

40. W. Neil Adger, Saleemul Huq, Katrina Brown, Declan Conway and Mike Hulme. (2003) ‘Adaptation to Climate Change in the Developing World.’ Progress in Development Studies vol.3, page 179–195

41. Neil A. F. Popovic. (1995-1996) ‘In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of the Principles on Human Rights and the Environment.’ Columbia Human Rights Law Review vol 27, page 487-604.

42. Thomas D. Peterson. (2004) ‘The Evolution of State Climate Change Policy in the United States: Lessons Learned and New Directions.’ Videner Law Journal vol.14, page 81-109

43. Michael Burger. (2003) ‘Bio-Polar and Polycentric Approaches to Human Rights and Environment.’ Columbia Journal of Environmental Law vol. 28, page 371-393.

44. Paula M. Pevato.(1999)‘A Right to Environment in International Law: Current Status and Future Outlook.’ Review of European Community and International Environmental Law vol.8, no. 3, page 309-321.

45. W. Paul Gormley. (1990) ‘The legal Obligation of the International Community to Guarantee a Pure and Decent Environment: the Expansion of Human Rights Norms.’ The Georgetown International Environmental Law Review vol. 3, page 85-116.

46. Hari M. Osofsky. (2005) ‘Learning from Environmental Justice: A New Model for International Environmental Rights.’ Stanford Environmental Law Journal vol.24, no1, page 71-150.

47. Jan Gorecki. (1987) ‘Human Rights: Explaining the Power of a Moral and Legal Idea’. The American Journal of Jurisprudence vol. 32, page 153.

48. B H Weston. (1986) 'Human Rights' Human Rights Quarterly vol.6, page 257, 262

49. George, Robert P. (2008) ‘Natural Law’. Harvard Journal of Law and Public Policy vol. 31, no 1, page 171-96

50. Anthony J Langlois. (2004) ‘The Elusive Ontology of Human Rights’. Global Society vol. 18, no.3, page 245

51. Prudence E Taylor. (1998) ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law? Georgetown International Environmental Law Review vol.10, page 309-397.

52. John Lee. (2000) ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law.’ Columbia Journal of Environmental Law vol. 25, page 284-346.

53. L. A. Obiora. (1996) ‘Beyond the Rhetoric of a Right to Development.’ Law and Policy vol. 18, page- 369

54. Arjun Sengupta.(2004)‘The Human Right to Development.’ Oxford Development Studies vol. 32, no. 2, page 182.

55. Christopher Furgal and Jacinthe Seguin. (2006) ‘Climate Change, Health, and Vulnerability in Canadian Northern Aboriginal Communities’ Environmental Health Perspectives vol.114,page 1964, 1968.

56. Wolfgang Sachs. (2004) ‘Environment and Human Rights’ Development vol. 47(1), page 42, 43.

57. Jessica B. Cooper.(1988) ‘Environmental Refugees: Meeting the Requirements of the Refugee Definition.’ New York University Environmental Law Journal vol.6, page 480, 484-485.

58. Norman Myers. (1993) 'Environmental Refugees in a Globally Warmed World' BioScience vol. 43(11), page 752.

59. Roda Verheyen. (2007) ‘The Climate Change Regime After Montreal.’The Yearbook of European Environmental Law vol. 7, page 237-38 (2007).

60. Dinah Shelton. (2006-2007) ‘Human Rights and the Environment: What Specific Environmental Rights have been Recognised ?’ Denver Journal of International Law and Policy vol. 35, page 129-171.

61. Dinah Shelton.(1991-1992) ‘Human Rights, Environmental Rights, and the Right to Environment.’ Stanford Journal of International Law vol. 28, page 103-138.

62. Gunner G. Schram. (1992-1993) ‘Human Rights and the Environment.’ Nordic Journal of International Law vol. 61-62, page 141-150.

63. Brooke Havard. (2007) ‘Seeking Protection : Recognition of Environmentally Displaced Persons Under International Human Rights Law.’ Villanova Environmental Law Journal vol.18, page 65-82.

64. Joni Hersch & W. Kip Viscusi. (2007) ‘ Allocating Responsibility for the Failure of Global Warming Policies.’ University of Pennsylvania Law Review vol. 155, page 1657-1694.

65. Imke Sagemuller. (2006) ‘Forest Sinks under the United Nations Framework Convention on Climate Change and the Kyoto Protocol: Opportunity or Risk for Biodiversity?’ Columbia Journal of Environmental Law vol. 31, page 191-242.

66. Dr.Donna Green & Kirsty Ruddock. (2009) ‘ Could Litigation Help Torres Strait Islanders Deal with Climate Impacts?’ Sustainable Development Law & Policy vol. 9, no. 2, page 24-30.

67. Gillian Triggs.( 1999 ) ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1988 (CTH). Melbourne University Law Review, vol. 16, page 75.

Online Sources:

1. Climate Change and Human Rights: A Rough Guide. (2008) Published by International Council on Human Rights Policy, Versoix, Switzerland. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/136_report.pdf

2. John H. Knox. (2009)‘Climate Change and Human Rights Law.’ Wake Forest University School of Law. Available at: http://works.bepress.com/john_knox/3/

3. Siobhan McInerney-Lankford. (2009) ‘Climate Change and Human Rights : An Introduction to Legal Issues.’ Harvard Environmental Law Review vol. 33, no-2, page 431-437.

Available at: http://www.law.harvard.edu/students/orgs/elr/vol33_2/McInerney- Lankford.pdf

4. Human Rights and Climate Change Study’ (2008) A Submission to the OHCHR by Environmental Law Committee, Human Rights Committee of New South Wales Young Lawyers. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/NSW_Young_Lawyers_HR_ClimateChange.pdf

5. John H. Knox.(2008) ‘Climate Change as a Global Threat to Human Rights.’ UN Consultation on the Relationship between Climate Change and Human Rights at Office of United Nations High Commissioner for Human Rights. (OHCHR) Geneva, Switzerland – October 22, 2008. Available at:

http://www2.ohchr.org/english/issues/climatechange/docs/JHKnoxCIEL.doc

6. ‘Climate Change Context – International and Domestic’ in Native Title Report (2008) Australian Human Rights Commission. Chapter four. Available at: http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf

7. Jorge Daniel Taillant.( 2007) ‘Human Rights, Development and Climate Change Negotiations.’ Centre for Human Rights and Environment.(CEDHA) Available at:

http://www.cedha.org.ar/en/initiatives/climate_change/docs/human_rights.pdf

8. Mary Robinson. (2006) ‘Climate Change and Justice’. A Speech delivered at the Barbara Ward Lecture series, Chatham House London, 11 December 2006. Available at: http://www.realizingrights.org/pdf/Barbara_Ward_Lecture_12-11-06_FINAL.pdf

9. Ms. Kyung-wha Kang. (2007) ‘Climate Change and Human Rights.’ A paper by Ms. Kyung-wha Kang, Deputy High Commissioner for Human Rights, Office of the United Nations High Commissioner for Human Rights. Available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/013DC0FAA475EC87C12573B10074796A?opendocument

10.Dan Chong and Simon Nicholson.( 2008) ‘From Knowledge to Action: Applying a Rights-Based Approach to Global Climate Change.’ International Studies Association. Page-1-17 Available at: http://www.allacademic.com/one/prol/prol01/index.php?cmd=prol01_search&offset=0&limit=5&multi_search_search_mode=publication&multi_search_publication_fulltext_mod=fulltext&textfield_submit=true&search_module=multi_search&search=Search&search_field=title_idx&fulltext_search=From+Knowledge+to+Action%3A+Applying+a+Rights-Based+Approach+to+Global+Climate+Change

11.‘Human Rights and the Climate Crisis: Acting Today to Prevent Tragedy Tomorrow.’ (2008) A Briefing Paper by Greenpeace. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Greenpeace_HR_ClimateCrisis.pdf

12. ‘Understanding Climate Change.’ UK Climate Impacts Programme. Available at: http://www.ukcip.org.uk/index.php?option=com_content&task=view&id=73&Itemid=186

13. Spencer Weart. (2009) The Discovery of Global Warming. Available at:

http://www.physicists.net/history/climate/

14. Dr Emily Shuckburgh. (2008) ‘Climate Change – Global Issues’ Cambridge University. Page -7, Available at:

http://www.atm.damtp.cam.ac.uk/shuckburgh/general/Climate_Press_Pack.doc

15. James Hansen, Makiko Sato, Reto Ruedy, Ken Lo. (2007) ‘Temperature Analysis.’ Nasa’s top climate scientists conducted

a joint research in 2007 in which they observed that global temperature was reaching dangerous level and commented that ‘we are nearing a tipping point’. Available at:

http://www.columbia.edu/~jeh1/mailings/2007/20071210_GISTEMP.pdf

16. James B. Martin-Schramm. (2008) ‘Human Rights and Climate Change.’ Available at:

http://www.elca.org/What-We-Believe/Social-Issues/Journal-of-Lutheran- Ethics/Issues/February-2009/8-Human-Rights-and-Climate- Change.aspx#_edn8

17. Bates, B.C., Z.W. Kundzewicz, S. Wu and J.P. Palutikof, Eds., (2008) ‘Climate Change and Water.’ Technical Paper of the Intergovernmental Panel on Climate Change, IPCC Secretariat, Geneva. Available at:

http://www.ipcc.ch/pdf/technical-papers/climate-change-water-en.pdf

18. Oceanic Climate Change and Sea Level in the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.2007. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. Available at:

http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-chapter5.pdf

19. Joe Buchdahl. (2002) ‘Climate Change’. Atmosphere, Climate & Environment Information Programme, Aric Manchester Metropolitan University, Chester Street, Manchester.UK. Available at: http://www.ace.mmu.ac.uk/Resources/Fact_Sheets/Key_Stage_4/Climate_Change/pdf/Climate_Change.pdf

20. James Peter Louviere and Donald A. Brown. (2008) ‘The Significance of Understanding Inadequate National Climate Change Programs as Human Rights Violation.’ Climate Ethics. Available at: http://climateethics.org/?p=39

21. Bridget Lewis. (2008) ‘Climate Change and Human Rights : Perspectives of Environmental and Indigenous Rights.’ Journal of The Australasian Law Teachers Association vol.1, no.1 & 2, Available at: http://www.alta.edu.au/pdf/JALTA/JALTA %20Volumes/2008%20Vol%201%20No%201&2.pdf

22. Bob Holmes. (2005) ‘Ocean Heat Store Makes Climate Change Inevitable.’ NewScientist.

Available at: http://www.newscientist.com/article.ns?id=dn7161

23. Purple Romero. (2008) ‘Wealthy Nations’ Failure to Mitigate Climate Change Violates Rights in Developing Countries.’ ABS-CBNNEWS. Available at:

http://www.abs-cbnnews.com/special-report/09/15/08/wealthy- nations%E2%80%99-failure-mitigate-climate-change-violates-rights- developing-

24. Marc Limon. (2009) ‘ Human Rights and Climate Change: Constructing a Case for Political Action.’ Harvard Environmental Law Review vol. 33, no. 2 page 439-476.

Available at:http://www.law.harvard.edu/students/orgs/elr/vol33_2/Limon.pdf

25. John Von Doussa. (2007) ‘Climate Change: Catastrophic Impacts and Human Rights.’ Australian Human Rights Commission. Available at: http://www.humanrights.gov.au/about/media/speeches/speeches_president/2007/20071211_Climate_Change.html

26. The United Nations Framework Convention on Climate Change (UNFCCC) at Copenhagen Climate Council. Available at:http://www.copenhagenclimatecouncil.com/get-informed/climate-negotiations-updates/what-is-the-unfccc.html

27. Statement on the Kyoto Protocol and Cliamte Change. (2008) Asia-Pacific Research Network (APRN). Available at: http://www.aprnet.org/index.php?option=com_content&view=article&id=68:statement- on-the- kyoto-protocol-and-climate-change&catid=50:issues-a-concerns

28. Press Release, EarthJustice, Inter-American Commission on Human Rights to Hold Hearing on Global Warming, (Feb. 6, 2007) Available at: http://www.earthjustice.org/news/press/007/inter-american-commission-on- human-rights -Hearing-on-Global- Warming.html

29. Mary Robinson. (2008) Climate Change Is an Issue of Human Rights, INDEPENDENT (London), Dec. 10, 2008, Available at http://www.independent.co.uk/opinion/commentators/mary-

robinson-climate-change-is-an-issue-of-human-rights-1059360.html

30. John Von Doussa. (2008) ‘climate change and human rights’ centre for policy development, Sydney , Australia. Available at:

http://cpd.org.au/article/climate-change-and-human-rights

31. Howard and Bartram.(2003) Domestic Water Quantity, Service Level and Health, WHO, at Page 9. Available at: http://www.who.int/water_sanitation_health/diseases/en/WSH0302.pdf

32. General Comments of Committee on Economic, Social and Cultural Rights. Office of the United Nations High Commissioner for Human Rights Available at: http://www2.ohchr.org/english/bodies/cescr/comments.htm

33. The State Obligation to Respect, Protect and Fulfill ICESCR Rights. International Commission of Jurists, Available at: http://www.icj.org/IMG/pdf/7.pdf

34. An Overview of Climate Change by United Nations Department of Economic and Social Affairs. Available at: http://www.un.org/esa/socdev/unpfii/documents/Climate_change_overview.doc

35. David Hunter.(2008)‘The Implications of Climate Change Litigation for International Environmental Law-Making.’ American University Washington College of Law Research Paper No. 2008-14.The Social Science Research Network Electronic Paper Collection. Available at :http://ssrn.com/abstract=1005345

36. Ross C. Anderson. (2008) ‘Combating Climate Change: A Human Rights Imperative.’ High Road for Human Rights Advocacy Project.’ Available at: http://www.highroadforhumanrights.org/documents/SpeechesCombatingClimateChangeAHumanRightsImperative.pdf

37. Eric A. Posner and Cass R. Sunstein. (2007) ‘Climate Change Justice.’University of Chicago Law School.The Social Science Research Network Electronic Paper Collection. Available at:http://ssrn.com/abstract_id=1008958

38. ‘The Science of Climate Change’. (2007) by Sir David King, Chief Scientific Adviser to HM Government and Head of the Office

of Science and Innovation. Available at: http://www.nwda.co.uk/pdf/thescienceofclimatechangeforweb.pdf

39. Climate Wrongs and Human Rights: Putting People at the Heart of Climate-Change Policy. (2008) Oxfam Briefing Paper on Climate Change and Human Rights. Available at: http://www.oxfam.org.uk/resources/policy/climate_change/downloads/bp117_climatewrongs.pdf

40. Climate Change and Human Rights. Publication of Australian Human Rights Commission. Available at: http://www.humanrights.gov.au/human_rights/climate_change/index.html

41. Background Paper on Climate Change and Human Rights. A Publication of Australian Human Rights Commission. Available at: http://www.humanrights.gov.au/about/media/papers/hrandclimate_change.html

42. Publication of American Association for the Advancement of Science. ‘An Overview of the International Bill of Rights.’ Available at: http://shr.aaas.org/escr/handbook/chap01.htm

43. Justice Ronald Sackville, Judge, Federal Court of Australia (2004). Keynote Speech on ‘Homelessness, Human Rights and Law.’ Available at :

http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_sackvillej12.rtf

44. Kevin Donegan. (2009) ‘What is the new UN Optional Protocol on Economic, Social and Cultural Rights?’ Center for Economic and Social Justice: social justice through human rights. Available at: http://www.cesr.org/article.php?id=321

International Official Reports Related to Climate Change

1. The Arctic Climate Impact Assessment Report. (2004) Publication of the Arctic Council and the International Arctic Science

Committee (IASC). Available at http://www.acia.uaf.edu/pages/scientific.html

2. Nicholas Stern Report on Economic Impacts on Climate Change. (2006) [Known as Stern Review] Published by the United Kingdom.

Available at: http://www.hm-treasury.gov.uk/stern_review_report.htm

3. ‘Climate Change 2007: Synthesis Report’. (2007) A Report by Intergovernmental Panel on Climate Change. Available at: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf

4. Native Title Report. (2008) Australian Human Rights Commission. Chapter four. Available at: http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/pdf/chap4.pdf

5. Assessment Reports on Agriculture and Food Security of Intergovernmental Panel on Climate Change (IPCC). (2007)Available at:

http://www.ipcc.ch/ipccreports/tar/wg2/index.php?idp=32

6. Human Development Report 2007/2008. Fighting Climate Change: Human Solidarity in a Divided World. Published by the United Nations Development Programme. New York, USA.

Available at: http://hdr.undp.org/en/media/HDR_20072008_EN_Complete.pdf

7. Inuit people’s Petition to the Inter-American Commission on Human Rights Seeking Relief from Human Rights Violations Resulting from Global Warming Caused by Acts and Omissions of the United States. (December 7 2005 ) Available at http://www.inuitcircumpolar.com/files/uploads/icc-files/finalpetitionicc.pdf

8. Mal´e Declaration on the Human Dimension of Global Climate Change 2007. A Small Island States Conference in Mal´e adopted this declaration on 14 November 2007. This declaration This declaration is available at: http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf

9. Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. (2009) report number: A/HRC/10/61-15 January 2009. Available at:

http://daccessdds.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement

10. The Draft Declaration of Principles on Human Rights and the Environment. Available at:http://fletcher.tufts.edu/multi/www/1994-decl.html

11. Jean Ziegler, The Right to Food (Report by the Special Rapporteur on the right to food to the Commission on Human Rights 57th session, 2001) UN Doc E/CN.4/2001/53 at p. 2. Available at: http://daccessdds.un.org/doc/UNDOC/GEN/G01/110/35/PDF/G0111035.pdf?OpenElement

12. Conference paper of ‘the High Level Conference on Food Security: The Challenges of Climate Change and Bioenergy’. Rome 3-5 June 2008. The Food and Agriculture Organisation of the United Nations (FAO). Available at: ftp://ftp.fao.org/docrep/fao/meeting/013/ai782e.pdf

13. Agenda 21, Chapter 26 of United Nations Department of Economics and Social Affairs. Available at: http://www.un.org/esa/dsd/agenda21/res_agenda21_26.shtml

14. Final Report and Recommendations on Human Rights and the Environment (2007) by The Asia Pacific Forum of National Human Rights Institutions. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Asia_Pacific_Forum_of_NHRIs_1_HR_and_Environment_ACJ_Report_Recommendations.pdf

15. Reference Paper on Human Rights and the Environment (2007) by The Asia Pacific Forum of National Human Rights Institutions. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Asia_Pacific_Forum_of_NHRIs_2_HR_and_Environment_Reference_Paper_2007.pdf

16. Human Rights and Climate Change,(2008) Maldives Final Submission under Resolution 7/23.of Office of the UN High Commissioner for Human Rights on 25th September 2008. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Maldives_Submission.pdf

17. Submission to the United Nations High Commissioner for Human Rights on Human Rights and Climate Change by Friends of the Earth England Wales and Northern Ireland (2008). Available at:http://www2.ohchr.org/english/issues/climatechange/docs/submissions/Friends_of_the_Earth_England_Wales_NIreland_HR_ClimateChange.pdf

18. Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) 2007 (AR4) Available at:http://www.ipcc.ch/publications_and_data/publications_and_data_reports.htm#1

Human Rights Instruments, Conventions and Declarations of the United Nations and other International and Regional Organisations:

1. The United Nations Framework Convention on Climate Change, 1992.

Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf

2. Resolution 10/4 (March 25, 2009) of the United Nations Human Rights Council. Available at: http://www2.ohchr.org/english/issues/climatechange/docs/resolution10_4.doc

3. The Universal Declaration of Human Rights. Available at: http://www.un.org/en/documents/udhr/

4. The International Covenant on Economic, Social and Cultural Rights (ICESCR), Available at: http://www2.ohchr.org/english/law/cescr.htm

5. The International Covenant on Civil and Political Rights (ICCPR). Available at: http://www2.ohchr.org/english/law/ccpr.htm

6. Declaration of the United Nations Conference on the Human Environment. (known as Stockholm Declaration). Available at United Nations Environment Programme. Website:

http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503

7. United Nations General Assembly Resolution 37/7, of 28 October 1982 on World Charter for Nature. Available at United Nations Environment Programme. Website:

http://www.unep.org/Law/PDF/UNEPEnv-LawGuide&PrincN05.pdf

8. Rio Declaration on Environment and Development 1992 (known as Rio Declaration) Available at United Nations Environment Programme. Website: http://www.unep.org/Documents.Multilingual/Default.asp?documentID=78&articleID=1163

9. African Charter on Human and Peoples' Rights. (known as Banjul Charter) Adopted on June 27, 1981 and entered into force Oct. 21, 1986. OAU Doc. CAB/LEG/67/3. Available at: http://www.achpr.org/english/_info/charter_en.html

10. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (known as the Protocol of San Salvador). It was adopted on November 17, 1988, and entered into force on November 16, 1999. This Protocol is available at Organisation of American States. Website: http://www.oas.org/juridico/English/treaties/a-52.html

11. The Declaration of Santa Cruz. This declaration is available at Organisation of American States. Website: http://www.summit-americas.org/boliviadec.htm

12. The Convention on the Rights of the Child. General Assembly resolution 44/25 of 20 November 1989. Available at the Office of the United Nations High Commissioner for Human Rights. Website: http://www2.ohchr.org/english/law/crc.htm

13. UN Human Rights Committee, General comment No. 6 - the Right to Life (1982). Available at the Office of the United Nations High Commissioner for Human Rights. Website: http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3

14. Economic and Social Council, General Comment 15 (2002), The right to water (arts 11 and 12 of the International Covenant on Economic, Social and Cultural Rights). Paragraph 3. Available

at: http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument

15. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It was adopted by the United Nations General Assembly. It entered into force as an international treaty on 3 September 1981 after the twentieth country had ratified it. Available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article14

16. Protocol No.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( known as the European Convention on Human Rights). This protocol is available at Council of Europe. Website: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf

17. The European Convention for the Protection of Human Rights and Fundamental Freedoms (known as the European Convention on Human Rights). This Convention is available at Council of Europe. Website: http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf

18. The American Convention on Human Rights. This Convention is available at Organization of American States. Website: http://www.oas.org/juridico/English/treaties/b-32.html

19. The Convention on Biological Diversity. It was opened for signature 5 June 1992 and entered into force 29 December 1993. Available at: http://www.cbd.int/convention/convention.shtml

20. The United Nations Declaration on the Rights of Indigenous Peoples. United Nations.

Available at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

21. The United Nations Convention Relating to the Status of Refugees ( known as Refugee Convention). Available at The Office of the United Nations High Commissioner for Refugees (UNHCR) Website: http://www.unhcr.org/3b66c2aa10.html

22. The Kyoto Protocol to the United Nations Framework Convention on Climate Change. 1998.Available: http://unfccc.int/resource/docs/convkp/kpeng.pdf

23. UN Human Rights Committee, General comment No. 31 – Nature of the General Legal Obligation  imposed on State Parties to the Covenant (2004) CCPR/C/21/Rev.1/Add.13, at Para 15. Available at: http://www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocument

24. Charter of the United Nations. Available at: http://www.un.org/en/documents/charter/chapter1.shtml

25. UNCESCR General Comment 3: The Nature of States Parties Obligations, (Art. 2, Para. 1 of the Covenant) U.N. Doc. E/1991/23 (Dec. 14, 1990). Available at: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument

26. OHCHR, Human Rights Committee [CCPR], General Comment 12: The Right to Self-Determination of Peoples, (Mar. 13, 1984). Available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f3c99406d528f37fc12563ed004960b4?Opendocument.

International and Regional Cases:

1. Lopez-Ostra v. Spain-(16798/90) ECHR [9 December 1994]. Available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lopez%20%7C%20Ostra%20%7C%20v.%20%7C%20Spain&sessionid=28908871&skin=hudoc-en

2. Corfu Channel case (United Kingdom v Albania). International Court of Justice. Judgment Delivered on 9th April 1949.

Available at: http://www.icj-cij.org/docket/files/1/1645.pdf

3. Nuclear Tests case (New Zealand v. France ), International Court of Justice. Available at: http://www.icj-cij.org/docket/files/97/7187.pdf

4. Gabcikovo-Nagymaros Project case (Hungary v. Slovakia.), International Court of Justice. Report No- 7. Judgment Delivered on 25th September 1997.

Available at: http://www.icj-cij.org/docket/files/92/7375.pdf

5. Advisory Opinion of International Court of Justice on Legality of the Threat or Use of Nuclear Weapons, 8th July 1996. Available at: http://www.icj-cij.org/docket/files/95/7495.pdf

6. Fadeyeva v. Russia-(55723/00) ECHR. [11 November 2005]. Available at: http://cmiskp.echr.coe.int/tkp197/view.asp? item=1&portal=hbkm&action=html&highlight=Fadeyeva%20%7C%20v.%20%7C%20Russia&sessionid=28908871&skin=hudoc-en

7. Taskin and Others v. Turkey-(46117/99)ECHR [30 March 2005] Available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Taskin%20%7C%20v.%20%7C%20Turkey&sessionid=28908871&skin=hudoc-en

8. Guerra and Others v. Italy-( 116/1996/735/932 ) ECHR [19 February 1998] Available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Guerra%20%7C%20v.%20%7C%20Italy&sessionid=28908871&skin=hudoc-en

9. Soc. & Econ. Rights Action Ctr. v. Nigeria, No. 155/96 (Afr. Comm'n H. & Peoples' R., May 27, 2002), Available at: http://www.escr-net.org/usr_doc/serac.pdf

10. Minors Oposa v. Department of Environment and Natural Resources, 33 I.L.M. 173 (1994). Available at: http://www.elaw.org/node/1343

11. Subhash Kumar v. State of Bihar, (1991) 1 S.C.R. 5, 13 (India), Available at http://www.elaw.org/node/2751

12. Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd and Others. No. FHC/B/CS/53/05, (Nov. 14, 2005) Federal High Court of Nigeria, Available at http://www.climatelaw.org/cases/case-documents/nigeria/ni-shell-nov05-judgment.pdf

13. Alkotmanybirosag Constitutional Court, No. 28/1994 (V.20), ABH. (1994) Available at http://www.elaw.org/node/2423 .

14. Farooque v. Gov't of Bangladesh, 17 B.L.D. (AD) 1, 1997, 1 B.L.C. (AD) 189 (1996) (Flood Action Plan Case), Available at http://www.elaw.org/node/1300.

End