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Commission Commission – General

Climate Change: Catastrophic Impacts and Human Rights

Presentation by John von Doussa

President of the Human Rights and Equal Opportunity
Commission; and Chancellor of the University of Adelaide.

University of Adelaide - Research Tuesday, 11 December
2007


I thank the Vice Chancellor for the invitation to participate in this, the
final, Research Tuesday for 2007.

I also thank Professor Barry Brook for his survey of the latest scientific
assessments and forecasts on the impact of climate change on our planet. They
are indeed alarming. The fact of climate change, and the rate of change, has
become all too clear, even if there are still sceptics that wish to debate the
causes. Our title reference to “Catastrophic Impacts” seems fully
justified.

Whilst there is now plenty of discussion about the responses that governments
should be making to address the predicted consequences of climate change, the
focus seems to have been largely on the economic, trade and security issues. The
social and human rights implications rarely rate a mention. Tonight I take the
opportunity to look at climate change through a human rights “lens”;
and then discuss whether, in responding to the change, human rights principles
have a role.

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. The human rights lens shows populations becoming increasingly
vulnerable to poverty and social deprivation as large tracts of previously
fertile land become useless. We can anticipate violent conflicts over limited
water supplies becoming more severe and frequent. We see problems in controlling
infectious diseases, which are also spreading wider. We see rising sea-levels
submerging low-lying atoll countries and delta regions, or making them
uninhabitable by inundating their fresh water tables.

These are scenarios which directly threaten fundamental human rights; rights
to life, to food, to a place to live and work.

What’s more, the human rights lens brings into focus the reality that
the world's poor and marginalised, all too often women and children, will be
disproportionately affected by climate change – they are more exposed to
disasters and have much lower capacity to cope with them – exacerbating
existing social inequity at both the local and international level.

Within Australia, it has been predicted that northern Aboriginal communities
will bear the brunt of climate change, with more than 100,000 people facing
serious health risks from malaria, dengue fever and heat stress, as well as loss
of food sources from floods, drought and more intense bushfires. In the Torres
Strait Islands, at least 8000 people will lose their homes if sea levels rise by
1 metre.[1]

The UNDP's Human Development Report 2007/2008 argues that mass
environmental displacement, the loss of livelihoods, rising hunger, and water
shortages have the potential to unleash national, regional and global security
threats.[2]

According to the fifth report from the Working Group on Climate Change and
Development, Up in Smoke? Asia and the Pacific, which was released in
November 2007, the human drama of climate change will largely be played out in
Asia, where over 60 per cent of the world's population, around 4 billion people,
live.[3]

With climate change becoming a key topic in national and global politics, the
first response has been to pursue measures to mitigate its rate of acceleration,
for example by curbing green-house gas omissions. We are presently in the midst
of further discussions on an agreement to replace the Kyoto Protocol once it
expires in 2012.

And recognising that climate change will continue, even with successful
mitigation measures, governments have also moved to encourage adaptation by
providing financial support to affected communities so that they can cope with
changing conditions. The notion of sustainable development has become part of
the new mitigation and adaptation vocabulary, along with concepts like
“contraction and convergence”.

Australia and other developed nations have accepted obligations under the
United Nations Framework Convention on Climate Change to help developing nations
implement regional adaptation
programs.[4] However, to date delivery
through these programs has been limited. The total international contribution
has amounted to around US$26 million. For the purposes of comparison; this is
equivalent to one week’s worth of spending under the United Kingdom flood
defence program.[5]

Archbishop Desmond Tutu has argued that we are drifting into a world of
‘adaptation apartheid’ with the world's poor left to sink or swim
through a problem that is not of their making, while citizens of the rich world
are protected from harm.[6]

An example of the way this differential impact could arise within our
community illustrates the point. The focus on shifting energy sources to low
carbon alternatives is likely to mean the more widespread introduction of
minimum energy performance standards, for electrical appliances, cars and
buildings, all of which have the potential to increase costs for users. Pricing
carbon into energy means unit costs will
rise.[7] The most disadvantaged will
struggle to live with increased costs.

Overseas, however, climate change catastrophes are already happening that are
beyond mitigation and adaptation remedies. Displacement of communities has
started. As displacement increases, so will the movement of people not only
within the boundaries of their countries, but across borders and across
oceans.

There is growing consensus amongst experts that by as soon as 2050 the number
of people displaced by climate change will be in the order of 150 million and
there are many higher estimates ranging up to 1
billion.[8]

Australian Federal Police Commissioner Mike Keelty has said publicly that the
potential security issues from climate change are enormous and should not be
underestimated. He argues that ‘in their millions, people could begin to
look for new land and they will cross oceans and borders to do
it’.[9]

All of these scenarios must attract government responses. What then, if
anything, does the modern human rights discourse offer or require from
governments when developing appropriate responses? I think the answer is
“a lot”.

But, as the precise connection between human rights and climate change is
still developing, I need to say a little by way of background about the notion
of human rights, and why it is justifiable to assert that human rights
principles establish normative benchmarks that governments should comply
with.

The modern notion of human rights is one founded in international law. It
traces back to, and is based upon the Universal Declaration of Human Rights
which was adopted by the General Assembly of the United Nations on 10 December,
1948;[10] 59 years ago yesterday.
The Declaration builds from the premise in the first Article that ‘All
human beings are born free and equal in dignity and rights’.

The human rights enshrined in the Declaration have been further articulated
in subsequent human rights treaties; most relevantly, the International
Covenant on Civil and Political
Rights[11]
(ICCPR) and the International Covenant on Economic, Social and Cultural
Rights[12]
(ICESCR), which
entered into force internationally in
1976.[13]

The values that inspired the drafters of the Declaration provide a powerful
point of reference in the climate change context. The Declaration established a
set of entitlements and rights - civil, political, cultural, social and economic
for ‘all members of the human family’ to prevent the
‘disregard and contempt for human rights that have resulted in barbarous
acts which have outraged the conscience of
mankind’.[14]

The major human rights treaties were developed before climate change was
understood to be a looming threat to human security. However, there are many
broad rights recognised in the ICCPR and ICESCR, as well as in the Convention
Against Torture,[15] and the
Convention on the Rights of the
Child[16] which are relevant to the
situation of people whose way of life comes under threat from climate change.
These broad rights establish international norms for the protection of the right
to life, to personal security, and to the basic necessities for life - clean
water, food, shelter, minimum health care and so on. Further, the fundamental
concept that all are equal before the law and are entitled without
discrimination to equal protection under the law, which underpins these human
rights treaties, is particularly relevant in developing responses to the impacts
of climate change.

However, the legal force of these rights in Australia is not clear cut. On
the one hand, by signing up to international law treaties Australia has made an
undertaking to the international community to ensure people within its
jurisdiction enjoy the recognised human rights.

On the other hand, while international human rights law establishes these
broad rights, in Australia international law has no binding force until the
parliament enacts the provisions of a treaty into domestic law. And while
Australia has enacted a number of international human rights
norms,[17] the broad range of rights
most likely to be under threat from the impact of climate change, including
those rights set out in ICESCR, have not been incorporated into Australian
law.

Nevertheless, the fact that these rights have been acknowledged by Australia
to the international community is still significant. In the now famous case of Teoh[18] the High Court of
Australia in 1995 held that in decisions made under domestic laws by the
executive arm of government, people in Australia had a ‘legitimate
expectation’ that bureaucrats would act in accordance with Australia's
international treaty obligations, even when the treaty had not been enacted into
Australian law.[19]

It seems reasonable therefore to argue, and hopefully expect, that in
developing policy and legislative responses to climate change Australia will
respect its international human rights obligations.

Whether particular climate change responses relate to local communities in
Australia; to immigration policies for people seeking to come to Australia to
escape environmental catastrophes in their homeland; or to funding for
adaptation measure overseas, a human rights-based approach to policy development
could and I would urge should be developed as a benchmark against which
policy and resource allocation is evaluated.

At a procedural level, a human-rights based approach would encourage transparent and participatory processes for decision-making,
implementation, monitoring and evaluation. By focusing on individuals as rights-holders the responsibility is placed on government to allow for
participation and input from affected members of society.

Beyond these process issues, a human rights-based approach would also guide
policy makers on the substantive elements of adaptation measures.

A human rights-based approach would apply the principle of non-discrimination and substantive equality. So, when a climate
change policy is put forward, decision-makers would need to identify the impact
it would have on the most disadvantaged or vulnerable, as far as possible using
data disaggregated according to the prohibited grounds of discrimination, e.g.,
race, colour, sex, national or geographic origin. If the result of an adaptation
measure is, for instance, that indigenous people are going to be
disproportionately impacted, the measure would require adjustment.

Under a human rights-based approach the substantive elements of any new
measure would need to ensure that the fundamental rights of everyone affected by
the measure were taken into account. Those rights should of necessity
incorporate minimum standards of political and civil rights, including personal
security, and economic social and cultural rights. Water, food, and housing
would be the most basic and important rights to ensure that the right to life
was meaningful. Human rights standards would guide policymakers and legislators
when weighing competing demands on limited resources; helping to ensure, for
example, that budget allocations prioritise the most marginalized and
disadvantaged.

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. To take but one example, 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
day[20]) 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.[21] Similar core
obligations resting on governments have been specified in other General Comments
in relation to the rights to food, health and adequate
housing.[22]

A human rights-based approach could be applied through a process that
required the introduction of new legislative based policies to be accompanied by
a human rights compliance statement. Where either the policy or enabling
legislation does not meet recognised human right norms, the statement would have
to identify and explain the reasons for the shortcoming. This type of policy
formulation process would be analogous to the processes enacted into the Human
Rights Charters now in place in the United Kingdom, New Zealand, the Australian
Capital Territory and Victoria.

The human rights issues for Australia that will arise where displaced
populations cross their national boundaries raise additional issues. As others
have observed, desperate hungry and homeless people are likely to cross
boarders, even oceans.

In the past two decades Australia has experienced movement across the seas of
people seeking refuge from persecution. Australia's legislative response to
these so called “unlawful non-citizens” has included indefinite
detention for failed asylum seekers and, until yesterday, the “Pacific
solution”. These measures are generally acknowledged to fall short of
well-established international human rights norms.

The flow of this human traffic in the past may turn out to be a trickle of
what may occur in the future.

One of the international treaties that followed the Declaration was the
Refugees Convention made in
1951.[23] We hear a lot today about
a class of climate or environmental refugees, but the Refugees Convention in
fact offers no protection to these new classes of asylum seekers. The Refugees
Convention was developed to protect people fleeing from persecution, and applies
only to people who ‘owing to a well foundered fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion’ are outside the country of their nationality, and
are unable or unwilling to return.

Climate refugees, generally speaking, will not fit within the definitions of
the Refugees Convention. But people cannot be returned to their island state if
the island no longer exists.

Furthermore, international law is clear that a non-citizen must not be
returned to a border of another country where the safety of that person is at
risk of torture, cruel or inhumane treatment. Plainly, to return people to a
country that still exists, but is so ravaged by the elements that food, water
and housing cannot be provided by its government would be to expose them to
cruel and inhumane treatment. However, it can be anticipated that there will be
endless arguments whether those fleeing particular countries could be resettled
somewhere in their country of nationality - either immediately, or in the
foreseeable future.

How Australia will treat unauthorised arrivals that really are in desperate
need of protection from starvation and death is a pressing question. At this
point in time international law offers no precise answer. Solutions will require
inventive and creative thinking, and much goodwill on the part of developed
nations. Plainly a new international treaty is needed to deal with the
obligation of States to people in need of either temporary protection from
drought, storm or salt water devastation, or a new permanent home because their
nation state has disappeared or can no longer support them. Hopefully Australia
will take a leadership role in UN fora to hammer out a solution which equitably
shares the emerging burden of climate change-induced catastrophes in particular
countries across the world.

In the meantime, the formulation of domestic laws to regulate the
unauthorised arrival of climate refugees should respect the human rights of the
individuals involved, and in so far as those rights are to be compromised on the
ground of nation security, or public order, public health or the economic
capacity of the Australian community, the compromise should be transparently one
that is proportionate to the situation and impinges on the basic human rights of
everyone to the minimum degree necessary.

Temporary protection visas in Australia have attracted much criticism, but
some form of temporary protection is likely to be part of the international
solution as a means of giving short term accommodation in situations of sudden
emergency until long term durable solutions are established in the home state,
or negotiated between nation states to share the burden of displaced communities
that have no prospect of being repatriated.

I conclude with a dismal observation about human nature. On issues of
resource and financial allocations inevitably policy development encounters the
reality that governments are influenced by the attitudes of their electorate,
and electors are influenced by self interest. It is fine for others to be
accorded their human rights, so long as to do so does not take anything from
those who already enjoy their rights. As a New Zealand professor recently
observed at a World Health Organisation meeting to address climate change:
‘The most difficult change of all is a change of
will’.[24] A human rights
based framework for change would provide a rational, defensible benchmark for
policy development as well as the justification for the measures ultimately
proposed.


[1] Friends of the Earth
International, Climate Change: voices from communities affected by climate
change
(November 2007) at pp.5-6. Available at: http://www.foei.org/en/publications/pdfs/climate-testimonies
[2] United Nations Development
Programme, Human Development Report 2007/2008 – Fighting climate
change: Human solidarity in a divided world
(November 2007) at p.186.
Available at: http://hdr.undp.org/en/reports/global/hdr2007-2008/chapters/
[3] Working Group on Climate
Change and Development, Up in Smoke – Asia and the Pacific (November 2007) at p.3. Available at: http://www.iied.org/pubs/pdf/full/10020IIED.pdf
[4] United Nations Framework
Convention on Climate Change,
opened for signature 4 June 1992, 1771 UNTS
107 (entered into force on 21 March
1994)
[5] UNDP, Human
Development Report 2007/2008,
note 2 at
p.189
[6] UNDP, Human Development Report 2007/2008, note 2
at p.166
[7] Justin Sherrard and
Alan Tate, Equity in Response to Climate Change: an Australian snapshot (paper for the Equity in Response to Climate Change Roundtable, Melbourne,
26 March 2007). Available at: http://www.bsl.org.au/main.asp?PageId=4732
[8] See for example The
Stern Review on the Economics of Climate Change
(2006). Available at: http://www.hm-treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm
[9] Commissioner Mick Keelty, 2007 Inaugural Ray Whitrod Oration (Speech delivered at the Adelaide
Convention Centre, 24 September 2007) Available at: http://www.afp.gov.au/media/national_media/national_speeches/2007/inaugural_ray_whitrod_oration
[10] Universal Declaration of
Human Rights,
GA Resolution 217A(III); UN DocA/810 at
71
[11] International
Convention on Civil and Political Rights,
opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976, except for art 41, which
entered into force on 28 March
1979)
[12] International
Covenant on Economic,
Social and Cultural Rights, opened for
signature 16 December 1966, 993 UNTS 3 (entered into force 3 January
1976)
[13] Australia ratified the
ICESCR on 10 December 1975 and the ICCPR on 13 August
1980.
[14] UNDP, Human
Development Report 2007/2008,
note 2 at
p.4
[15] Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
opened for signature 12 October 1984, 1465 UNTS 85 (entered into force 16
June 1987)
[16] Convention on
the Rights of the Child,
opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September
1990)
[17] See for example, the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and parts
of the Workplace Relations Act (Cth) and the Evidence Act 1995 (Cth)
[18] Minister for
Immigration and Ethnic Affairs v Teoh
(1995) CLR
273
[19] Although various
governments have attempted to overturn the effect of Teoh, in more recent
times the Liberal Government made formal statements to the effect that Australia
sees it as its obligation to meet its human rights treaty obligations and
encouraged other States to do likewise. There is no indication the new Labor
Government will adopt any different
approach.
[20] This figure is for
total consumption (i.e. drinking water plus water for foodstuffs preparation):
Howard and Bartram, Domestic Water Quantity, Service Level and Health,
WHO, (2003) at p.9. Available at: http://www.who.int/water_sanitation_health/diseases/en/WSH0302.pdf
[21] CESCR, General Comment
No. 15 – The right to water
(2002) at
para.37
[22] See for example,
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). General Comments available at: http://www2.ohchr.org/english/bodies/cescr/comments.htm
[23] Convention Relating to
the Status of Refugees,
opened for signature 28 July 1951, 189 UNTS 150
(entered into force 22 April
1954)
[24] Professor Alistair
Woodward, Keynote Address (Speech delivered at the 58th Session of the WHO Regional Committee for the Western Pacific, Jeju, Republic of
Korea, 11 September 2007). Available at: http://www.wpro.who.int/NR/rdonlyres/52F7E3A4-71A7-4DD2-BE79-7D43E234B9AD/0/RC58report.pdf (At p.111)