Climate change

and Human Rights

Medeea Elena Popa, Paola Falcomer, Sara Fioresi, Anne Schuchardt, Laurien Quirós, Marco
Aurélio Mayer

A student panel for the course Human Rights in International Politics

Supervisor: Prof. Pietro de Perini | Università degli Studi di Padova
Overview
I. Introduction
II. Legal Framework
III. Internal Displacement
IV. Cross- Border Displacement
V. Discussant 1
VI. Discussant 2
I. Introduction
1. WHAT
2. WHO
3. WHERE
4. WHEN
5. WHY
6. HOW

But first: WOOCLAP → QFSMBZ

 1. WHAT ‘CLIMATE CHANGE’ MEANS? AND WHAT IS IT?
NASA’s definition is:

“a broad range of global phenomena created predominantly by burning fossil fuels, which add
heat-trapping gases to Earth’s atmosphere. These phenomena include the increased temperature trends
described by global warming, but also encompass changes such as sea-level rise; ice mass loss in
Greenland, Antarctica, the Arctic and mountain glaciers worldwide; shifts in flower/plant blooming; and
extreme weather events.”

Climate change is one of the greatest threats to human rights of our generation.
2. WHO?

● Who is at risk? → Everyone, but some are more vulnerable than others
● Who is responsible? → Climate change is caused by human activities
- Fossil fuels companies
- Wealth countries
- Politicians
- Rich people
- All of us?
● Who can do something? → International community? Governments? EVERYONE

https://www.bbc.com/future/article/20181102-what-can-i-do-about-climate-change
3. WHERE?
● Climate change is expected to affect every country in the world

● Yet, its impact will not be felt equally across all regions and some will be worse hit than

others because of a range of different threats.

● Bigger problems for developing countries

Six places in the world especially vulnerable to the impact of climate change (TIME)

● Lagos, Nigeria
● Haiti
● Yemen
● Manila
● Kiribati
● United Arab Emirates

https://time.com/5687470/cities-countries-most-affected-by-climate-change/
4. WHEN?
PAST:

● Nearly a century for the scientific community to understand that human activity could alter the
climate
● 1800s: first experiments
● 1988: global warming gets real → after that: changes
● Yet, skepticism → “The concept of global warming was created by and for the Chinese in order to
make US manufacturing non-competitive” (Nov 6th, 2012)

PRESENT: No more doubts → “the defining human development challenge for the 21st century”

FUTURE: Things must change

5. WHY? CAUSES?
● Climate change is happening because of human activity
● Greenhouse gases → greenhouse effect and global warming

Main causes:

● Humanity’s increased use of fossil fuels

● Deforestation
● Increasing intensive agriculture
6. HOW? EFFECTS OF CLIMATE CHANGE ON HUMAN RIGHTS
Climate
Change

Human
Impact

Rights
Impact
II. Legal framework and int’l jurisprudence

a. How international courts deal with

climate change?
I. Brief overview / Trail Smelter dispute
II. ICJ: Argentina v. Uruguay
III. ICJ: Costa Rica v. Nicaragua
b. Climate change in international
treaties
a. How international courts deal with climate change?

I. Brief overview

The subject of climate change has been dealt with by international

law long before it became the concern of international agreements.

International courts were forced to analyse cases involving

transboundary pollution.
 a. How international courts deal with climate change?

The Trail Smelter Dispute

Transboundary pollution.

Dispute between lead and zinc smelter operators in BC/Canada and distressed
residents in WA/USA.

Dispute settled by an arbitration tribunal in 1941.

Two important principles of international environmental law:

- The harm principle: no state has the right to use or allow the use of its
territory in a way that inflicts harm to another state.
- The ‘polluter pays’ principle: the polluter must pay for not only damages and
compensations, but should also pay for the costs of preventing the damage.
Prevention, precaution, and redistribution of the pollution costs.

As long as it is possible to prove that harm is a consequence of a certain act, it will be

possible to hold a polluter responsible.
 a. How international courts deal with climate change?

ii. ICJ: Argentina vs. Uruguay (2006)

“[...] the obligation to protect and preserve [...] has to be interpreted in accordance with
a practice, which in recent years has gained so much acceptance among States that it
may now be considered a requirement under general international law to undertake
an environmental impact assessment where there is a risk that the proposed
industrial activity may have a significant adverse impact in a transboundary context,
in particular, on a shared resource.” [emphasis added]

ICJ ruled that states could be held under int’l law for not assessing climate impacts
a. How international courts deal with climate change?

iii. ICJ: Costa Rica vs. Nicaragua (2010)

This was the first case in which ICJ assessed costs and ordered
compensation for environmental damage

Environmental impact could not be merely valued as a one-time loss

ICJ opened up a precedent for assessing the impact of climate change

ICJ decision was followed by an Advisory Opinion from the Inter-American

Court of Human Rights on 9 February 2018, in which the Court addressed
the link between environmental protection and human rights for the first
time.

ICJ and international courts seem prepared to deal with climate change
matters
b. Climate change in international treaties

1992 - Rio Conference: 1st major treaty on climate change. Known as the
United Nations Framework Convention on Climate Change (UNFCCC).
Framework for future treaties.

All party nations should participate in COPs (Conference of the Parties).

1997 - COP 3: Nations established the Kyoto Protocol.

Three main issues:

1) Nations should reduce emissions;

2) initially, only developed States would be required to mitigate emissions;

3) States could transfer emission reduction units among each other.

The mechanism of carbon credits was born out of this agreement

b. Climate change in international treaties

2001: Bush opposes Kyoto and withdraws US signature.

2016 - COP 21: Paris Agreement.

195 signatories, 189 parties (so far; US could drop out this
Wednesday, November 4th).

The goal is to reduce emissions in order to keep increase in global

temperature to below 2 °C above pre-industrial levels, while trying
to limit the increase to just 1.5 °C.
III. Internal Displacement
STRUCTURE

❖ What is Internal Displacement?

❖ Internal Displacement and Climate Change

❖ Case Study: Indigenous peoples

❖ Concluding Thoughts
What is Internal Displacement?

Migration:

“The movement that requires a change in the place of usual residence and that is longer term. In demographic research and official statistics,
it involves crossing a recognized political/administrative border.” (Word Bank 2018)
This movement can occur internally (within State borders) or across border.

Internal Displacement:

Refers to the forceful (unvoluntary) movement of persons from one part of their country to another as a result of armed conflict,
violation of human rights, natural or human-made disasters.
Internally Displaced Persons (IDPs):

● IDPs remain under the protection of its government, even if that government is the reason for their displacement (UN
Refugee Agency)
● IDPs often move to areas where it is difficult to deliver humanitarian assistance and thus belong to the most vulnerable
in the world
● An estimated 41.3 million people lived in internal displacement in 2018 (IDMC in Smith 2020)

Relevant existing legal frameworks on Internal Displacement:

● 1998 UN Guiding Principles on Internal Displacement

“IDPs are defined as persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in
particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or
human-made disasters, and who have not crossed an internationally recognized State border”

● 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa
Internal Displacement and Climate Change
Some World Bank Data:

● Estimated 200 million people may be displaced by 2050 as a consequence of climate change
● People are being displaced 4 times as often by natural disasters (i.e. floods, storms) than by conflict (ibid.)
● Most of the affected people are estimated to remain within their own countries

Existing Legal and Political Frameworks

● Sendai Framework for Disaster Risk Reduction

● UN Agenda for Humanity (2016)
● 2030 Sustainable Development Goals (i.e. target 10.7)
● The Platform on Disaster Displacement
● UN FCCC (i.e. Cancun Adaptation Framework
● ….
The State:

● Principle of State Sovereignty

● OHCHR 2020:

States have a human rights obligation to prevent the foreseeable adverse effects of climate change and ensure that
those affected by it, particularly those in vulnerable situations, have access to effective remedies and means of
adaptation to enjoy lives of human dignity.”

● Protection of vulnerable population groups

 Case Study:
Indigenous peoples
“We all breathe this one air, we all drink the same water. We all live on this one planet. We need to
protect the Earth. If we don’t, the big winds will come and destroy the forest. Then you will feel the
fear that we feel.”

Raoni Metuktire
(Kayapó people Brazil, 2019)
Definition “Indigenous peoples”

Source: ILO Report on Indigenous Peoples and Climate Change, 2017

Relevance: Indigenous rights and the SDGs

6 references of indigenous peoples in the UN resolutions

“Transforming Our World: the 2030 Agenda for Sustainable
Development”

Goal 10:
Reduce Inequalities within and among countries
Source: ILO Report on Indigenous Peoples and Climate Change, 2017
Indigenous unique precariousness

Social, economic and environmental

Migration and Forced Displacement
vulnerability

Dependence on renewable natural

resources Gender Inequality

Geographic vulnerability Lack of visibility and recognition

4. Migration and Forced Displacement

● An estimated 143 million people in Sub-Saharan Africa, South-East Asia and Latin America will be
victims of climate-related forced migration by 2050 (OHCHR 2020)

● Consequences:
○ Dispersion of communities (loss of identity)
○ Human rights violations (discrimination, exploitation, trafficking)

● Challenges:
○ Transitioning to urban life (risk of unemployment/informality/wage discrimination/forced labour, poverty)
○ Limited social protection (health and safety risks)
○ Climate change (lower work capacity, heat exhaustion, dehydration, death)
Types of climate change vulnerabilities in the indigenous
context

Extreme risk
High risk
Medium risk
Low risk
No data
Concluding thoughts

● Shared climate-induced challenges despite different realities

● States need to respect their human rights responsibility

● Indigenous as powerful change agents

IV. Cross-border Displacement
Structure

● What is Cross-border Displacement

● Impact Climate Change and Human Rights of cross-border displaced people
○ Study case Taitiati
● Outstanding Characteristics
● Response from International Community
○ Regional level (Central Africa, Somalia and Kenya)
○ Global level (Haiti)
● Conclusion
 Cross-border Displacement

● Definition

,,Context of disasters and the effects of climate change it

refers to situations where people flee or are displaced
across international borders in the context of sudden-
or slow- onset disasters caused by climate change.”
(Nansen Initiative Definition, 2015)

● Change of Jurisdiction
○ People are now depending on other states

● Limitations
○ No monocausal relation
○ Scientific uncertainties
○ Lack of systematic data
Impact Climate Change and Human Rights of Cross-border displaced people
Climate Change

Human Impact

Rights Impact
IMPACT ON CROSS-BORDER DISPLACED PEOPLE
International Response (Regional and Global Level)
Regional level
● Bilingual agreements between states
● Trend: more likely to flee in a country which is close
● Protocol on Free Movement of Persons in the IGAD
region
● Organization of African Unity- Refugee Convention
Protocol on Free Movement of Persons in the IGAD region

● Endorsed in 02/ 2020

● Intergovernmental Authority on Development (Djibouti, Ethiopia, Somalia, Eritrea, Sudan, South
Sudan, Kenya, Uganda)
● Free cross-border movement of persons, including due to disasters caused by climate change

-> enhances orderly cross-border mobility and migration

OAU convention in Africa

Organization of African Unity- Refugee Convention expanded definition of a refugee:

“The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign
domination or events seriously disturbing public order in either part or the whole of his country of origin
or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside
his country of origin or nationality“
● Central Africa
○ formal and informal arrangements of cross-border
movements during time of drought for pastoralists
(Source: Nansen report, 2015: 44)

● Somalia -> Kenya/ Ethiopia (slow onset event)

○ 290,000 Somalis fled across the border into the neighbouring countries Kenya and Ethiopia
because of drought, famine, ongoing conflicts, insecurity and human rights violations

● Kongo (Goma) -> Uganda and Rwanda (sudden event)

○ Eruption of Mount Nyiragongo in the DRC destroyed 40 per cent of Goma (2002)
 Global level

● No universal legal definition

● Not recognized as refugee under the 1951
Geneva Convention
Example Ione Teitiota- Kiribata
WHY NOT
● That natural disasters do not discriminate, while this is an integral
feature of the refugee definition and
● It is difficult to identify a persecutor in environmentally induced cases.
(Scott (2020), p.4 and McAdam (2011), p.12.)
● Challenge: Forced displacement vs voluntary migration (Boundaries
blur)
 Global Level

- Convention may apply in some specific cases where environmental and

political factors are combined (see IOM, 2014:46)

- Special exceptions
E.g.: Haiti Earthquake 2010

The Governments of Denmark, France, Germany, Romania, Slovakia and Slovenia also reported to the UN
Independent Expert on the situation of human rights in Haiti that they had suspended forced returns of
Haitians after the 2010 earthquake (Source: United Nations Human Rights Council, supra note 41, pp.6-8)

- Non-refoulement principle:
Courts have not yet found the impacts of climate change to reach the threshold necessary to trigger
non-refoulement
 C nclusion

“National and international responses to this challenge are insufficient and protection for affected
people remains inadequate. The situation is exacerbated by operational and institutional shortcomings,
such as a lack of coherent institutional responses and effective inter-state as well as (sub-)regional
cooperation.“ (Nansen Website)
PARIS AGREEMENT: CRITICAL
ANALYSIS AND FUTURE
PERSPECTIVE
● François Hollande: “This is a major leap for mankind.”

● Economist Lord Stern: “This is a historic moment, not just for us

but for our children, our grandchildren and future generations.”

● Al Gore saw it as “bold and historic.”

… Is it though?
FRACKING
INTERNATIONAL
RESPONSIBILITY
Responsibility: the “corollary of every
obligation”
Every states has its obligations that derive from the sources of International Law.
These can be:

- positive ( whenever the states have to do something)

- negative (whenever the states have to do not do something)

Their responsibility lies into obligations, that determine the consequences of their actions
or omissions.
The bindingness effect
IPCC: “...international agreements among states (national governments) may be more or less ‘legally
binding’ on their parties. The degree of ‘bindingness’ depends on both the legal form of the agreement
and the costs to the state of noncompliance.”

The most effective so far seems to be :

The targets and timetables in the Kyoto Protocol (UNFCCC, 1998) and the Marrakech Accords
(UNFCCC, 2001)

WHY?
They include specific quantitative emissions limits, a compliance system that sanctions noncompliance,
and flexibility mechanisms. (IPCC)
Has the international community an obligation
and responsibility to fight climate change?
The role of Human Rights in Climate Change

Since climate change is the threat par excellence

of our times and puts multiple human rights at
risk, the answer is yes.

It can therefore be said that since every state has

the obligation to guarantee the security of its
citizens, the defense of human rights promotes
also the fight against climate change.
Inequalities of Climate Change: should the
main emitters compensate the less emitters?
Why the poor and undeveloped countries must pay for what – rich and developed countries
– did as the main responsible?

Can they be compensated for this? How?

How to determine which are the main responsible and who are not?

What about non-states actors (Industry, companies, consumers)?

Since when should a state/international community be considerate responsible for?

International Community’s response
The Adaptation Fund was established under the Kyoto Protocol.

The Adaptation Fund finances projects and programmes that help vulnerable communities in developing
countries adapt to climate change.

Initiatives are based on country needs, views and priorities.

The Fund is financed in part by government and private donors, and also from a two percent share of
proceeds of Certified Emission Reductions (CERs) issued under the Protocol’s Clean Development
Mechanism projects.
The Global Environment Facility (GEF) is one of the results of the 1992 Rio Earth Summit.

It has provided close to $20.5 billion in grants and mobilized an additional $112 billion in
co-financing for more than 4,800 projects in 170 countries.

The GEF also serves as financial mechanism for many conventions, such as the UNFCCC
and the United Nations Convention to Combat Desertification (UNCCD).

The projects they pursue regards for projects related to biodiversity, climate change, land
degradation, the ozone layer, mercury, sustainable forest management, food security etc
The Green Climate Fund (GCF) is the world’s largest dedicated fund helping developing
countries reduce their greenhouse gas emissions and enhance their ability to respond to
climate change.

The funds include both public and private sectors.

The Fund pays particular attention to the needs of societies that are highly vulnerable to
the effects of climate change, in particular Least Developed Countries (LDCs), Small Island
Developing States (SIDS), and African States.

It collected 10.3 billions of dollars so far.

 Warsaw International Mechanism for Loss and
Damage associated with Climate Change
Impacts (WIM)
It introduce two important formulas that should help the more exposed to climate change
effects:

- The Task Force on Displacement , which has the role to recommend effective solutions
to minimize and prevent climate-induced displacements

- Clearing House for Risk Transfer , which has to spread information on insurances and
risk transfer so that the parties involved may develop and implement the best strategies
 SIDS: Small Island Developing States

Total number of Small Island Developing States (SIDS) as listed by

UNESCO and UN-OHRLLS.
 What do they have to face with?
Sea Rise Level

Climate Change effects (shortage

of water, storms, hurricanes, and
cyclones)

Spill-oil disasters

Coastal erosion

Food security

High exposure to global economic

shocks
The sinking states
As the climate change will mostly make these
islands disappear, SIDS must ensure that
residents relocate to less vulnerable locations
and may need to consider international
movement of residents.

In fact considering this perspective, the most

effective tool and probably the only one that can
be adopted, is migration.
 New Zealand Humanitarian Visa experiment
In 2017, the New Zealand government proposed a new type of visa dedicated exclusively to
Pacific populations. It would have involved the possibility of these populations, and in any
case for a certain quota, the possibility of migrating to New Zealand due to the effects of
climate change that the regions of those islands are suffering.

This solution, however, was not successful because the same populations did not want to
leave their homes.
CONCLUSIONS
What does this lesson teach us?
The needs of the population must be considered on a case-by-case basis.
The losses and damages they have to face, moreover, should not be considered only in an
economic sense.
The loss of one's own land is associated with the loss of identity but also with one's own
culture, values and, above all, one's own history.
Losses and damages, if understood in this sense too, may never be compensated.
The least the International Community can do then is to assure these populations another
place to live.
Sources
Ginnetti, J, & Travis, F. (2014): ASSESSING DROUGHT DISPLACEMENT RISK FOR KENYAN, ETHIOPIAN AND SOMALI PASTORALISTS
https://www.internal-displacement.org/sites/default/files/publications/documents/201405-horn-of-africa-technical-report-en.pdf

Human Rights Council (2018): The slow onset effects of climate change and human rights protection for cross-border migrants
https://www.ohchr.org/Documents/Issues/ClimateChange/SlowOnset/A_HRC_37_CRP_4.pdf

IOM, 2014: IOM outlook on migration, environment and climate change

International Labour Organization. 2017. “Indigenous Peoples and Climate Change. From Victims to Change Agents through decent work.”
https://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/publication/wcms_551189.pdf

Jane McAdam and Marc Limon, 2015: Human Rights, climate change and cross-border displacement: the role of the international human rights community in contributing to effective and just solutions.
https://unfccc.int/files/adaptation/groups_committees/loss_and_damage_executive_committee/application/pdf/cc_hr_displacement_urg.pdf

Laetitia Lesieure, 2014: Earthquake-induced internal displacement and cross-border migration on Hispaniola in 2013
http://labos.ulg.ac.be/hugo/wp-content/uploads/sites/38/2017/11/The-State-of-Environmental-Migration-2014-135-147.pdf

Manou et al.. 2017. Climate Change, Migration and Human rights: Law and Policy Perspectives.

Nansen initiative, 2015: Agenda for the protection or cross-border displaced persons in the context of disasters and climate change.

UNHCR, 2006: OAU Convention Governing the Specific Aspects of Refugee Problems in Africa

Oxford Human Rights Hub. 2020. “Protecting Indigenous Communities in Cases of Climate-forced Migration.” http://ohrh.law.ox.ac.uk/protecting-indigenous-communities-in-cases-of-climate-forced-migration/

Reuveny, R. (2007): Climate change-induced migration and violent conflict. School of Public and Environmental Affairs, Indiana University, Bloomington, IN 47405, USA

Smith, K.M. Rhona. 2020. International Human Rights Law. 9th edition. Oxford University Press: Oxford.

UN News. 2018. “UN urges protection of indigenous peoples’ rights during migration.” https://www.un.org/development/desa/en/news/social/protection-of-indigenous-peoples.html
 Sources
IPCC (2018) International Cooperation: Agreements & Instruments https://www.ipcc.ch/site/assets/uploads/2018/02/ipcc_wg3_ar5_chapter13.pdf

Global Environment Facility (GEF), website https://www.thegef.org/about-us

Green Climate Fund (GCF), website https://www.greenclimate.fund/about

UNFCCC (2020) Online guide to loss and damage https://unfccc.int/sites/default/files/resource/Online_Guide_feb_2020.pdf

Adaptation Fund, website https://www.adaptation-fund.org/about/

UN Sustainable Development, website https://sustainabledevelopment.un.org/topics/sids

Dempster, H., & Ober, K. (2020). New Zealand’s “climate refugee” visas: lessons for the rest of the world. Center for Global Development.
https://www.cgdev.org/blog/new-zealands-climate-refugee-visas-lessons-rest-world

The Economist (2019)”The past, present and future of climate change” . Publication: The Economist Publisher: https://www.economist.com/briefing/2019/09/21/the-past-present-and-future-of-climate-change

BBC Future https://www.bbc.com/future/article/20200618-climate-change-who-is-to-blame-and-why-does-it-matter

https://www.bbc.com/future/article/20181102-what-can-i-do-about-climate-change

History, https://www.history.com/topics/natural-disasters-and-environment/history-of-climate-change

Global Politics, Andrew Heywood, Palgrave Foundations, 2014.

F. Soltau (2009). "Fairness in international climate change law and policy". Cambridge University Press

R. Verheyen (2005). Climate Change Damage and International Law: prevention duties and state responsibility. Martinus Nijhoff Publishers

The International Court of Justice. https://www.icj-cij.org/en

The United Nations. Treaties Database. https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXVII-7&chapter=27&Temp=mtdsg3&clang=_en

O. Quirico, M. Boumghar (2016). "Climate change and human rights: an international law and comparative law perspective. Routledge.
DISCUSSION - BRAINSTORMING
● NOW IT’S YOUR TURN!!

● HAS THE INTERNATIONAL COMMUNITY AN OBLIGATION AND RESPONSIBILITY TO FIGHT

CLIMATE CHANGE?

● CAN WE WIN THE WAR AGAINST CLIMATE CHANGE?