3. Human Rights in Relation to Climate Change
3.1 Mapping the Rights
Human rights refer to the core set of rights recognised under international law on behalf of all individuals. These rights include, among others, rights to equality, life, human dignity, healthy environment, housing and food. The primary source texts are the 1966 International Covenants on Civil and Political Rights (ICCPR) and the Economic, Social and Cultural Rights (ICESCR), both of which derive from the 1948 Universal Declaration on Human Rights. The Universal Declaration on Human Rights was drafted after the Second World War. It is called universal, although only a few countries participated in the drafting. It is a declaration and was initially not intended as an internationally binding agreement.155 However, the dominant current opinion in public international law is that it has become a part of international customary law.156 Human rights, as defined in ICCPR, ICESCR and the Universal Declaration on Human Rights are defined as being equal to every person despite
‘nationality or cultural affiliation’. 157 Furthermore, every person becomes a rights holder ‘by birth’.158 At the international level almost every state nowadays belongs to at least one human
155 Bösl, A. and Diescho J, eds (2009). Human Rights in Africa Legal Perspectives on their Protection and Promotion. Windhoek. Konrad-Adenauer-Stiftung. p 5.
156 Ibid .
157 Sachs, W. (2004). Climate Change and Human Rights. In: Crutzen, P. organiser. Interactions between Global Change and Human Health. Vatican. The Pontifical Academy of Sciences. p 351.
158 Ibid.
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rights treaty. As mentioned before most of the parties to the UNFCCC and the Kyoto Protocol have also ratified international human rights treaties.159 The ICESCR has 164 parties, and the ICCPR has 169 parties160. For ratification details of African countries see Annexure I. Furthermore, several states have adopted human rights in their constitutions.
From the African perspective, the 1982 African Charter is important. With these agreements the international community has created a body of substantive human rights law that sets out obligations and duties to a state. These treaties are legally binding on all states that have ratified them.
Several other human rights treaties exist, for instance: the International Convention on the Elimination of All Forms of Racial Discrimination, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Convention on the Rights of the Child. There are also treaties specific to the African Union, such as Convention Governing Specific Aspects of Refugee Problems in Africa, African Charter on the Rights and Welfare of the Child, and African Charter on Democracy, and Elections and Governance, Protocol on the Rights of Women in Africa. However, these are not considered as part of this thesis since they focus on a specific group or a subject matter.
This thesis focuses on the generic civil, political and socioeconomic rights applicable to all.
Table 2 summarises the rights outlined in the aforementioned treaties, which can be affected by changing climate.
159 There are currently 196 parties to the UNFCCC and 192 to the Kyoto Protocol.
160 Ratification status available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en and https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en [visited 24/03/2017].
45/111 Table 2. Human Rights Affected by Climate Change
Specific Human Right Relevant Article under Specific Legal Instrument ICESCR ICCPR African
Charter Right of self-determination
Including the right to freely pursue economic, social and cultural development.
Including adequate food, clothing and housing.
11
Right to the enjoyment of the highest attainable standard
of physical and mental health 12 16.1
Right to education 13 17. 1
Right to cultural life 15 17. 2
Right to life 6.1 4
Right to liberty and freedom of movement 9.1
12.1
12.1
Right to dignity 5
Right to property 14
Family right
Including provisions of special measures to provide for the needs of elderly and disabled.
23.1 18.1
18.4
Right to freely dispose of wealth and natural resources
(*Including compensation in case of spoliation.) 1.2 21*
Right to national and international peace and security 23.1
Right to generally satisfactory environment 24
3.1.1 Types of Rights
The human rights laid out in these treaties are generally categorised as civil and political rights and social, economic and cultural rights. The former includes individual rights entailing freedom from arbitrary governmental interference and right to life, liberty, freedom of expression and assembly, political participation, access to justice, privacy, property, and protection from torture. They are typically non-derogable.161 The latter includes policies creating conditions enabling individuals to develop to their full potential, that is, right to work, education, social security, food, housing, and enjoyment of the highest attainable
161 Boyle, A. and Anderson, M. eds (1998). Human Rights Approaches to Environmental Protection. Oxford.
Clarendon Press. pp. 17 and 46.
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standard of physical and mental health. They can be derogated under certain circumstances.162 The civil and political rights are typically assured through judicial mechanisms, whereas the social, economic and cultural rights are generally dependent upon domestic policies.163 Also a third categorisation exists, the so-called third generation rights or solidarity rights which, according to Boyle, are collective rights typically entailing peace, development and good environment.164 These rights are directed towards groups rather than individuals and obligate governments and international agencies to cooperate with and assist those whose own resources are inadequate.165 The rights provided in the African Charter are not only individual rights, but also people’s rights. In particular, the social, economic and cultural rights defined in the African Charter are written in a form of ‘all peoples shall’
instead of the wording ‘every individual shall’, which is the wording used for civil and political rights in the African Charter.166 It should however be noted that the different generations rights are mutually supportive, and the African Charter affirms the existence of all the different generation rights.167
The procedural rights are equally important and they include 1) public access to information, 2) public participation, and 3) access to review remedies.168 Although access to information can be seen as a prerequisite for meaningful participation, access to justice is a means to enforce the rights to access to information and participation. Therefore, procedural rights are important to safeguard other rights.169 The ICCPR provides a basis for procedural rights in Articles 2.3, 14, 19 and 25. However, procedural rights are often better covered in regional treaties, such as the African Charter which recognises the right to remedy and access to information.170 Furthermore, procedural rights are often included in domestic legislation. In addition to human rights law, the procedural rights are typically included in Multilateral Environmental Agreements.171 The most comprehensive articulation for procedural rights in the context of environment is given in the Convention on Access to Information, Public
162 Ibid. pp. 17 and 46.
163 Humphreys. Note 8 above. p. 12.
164 Boyle. Note 161 above. p. 46.
165 Ibid. p. 46.
166 African Charter. Note 22 above. For example, see Articles 16 on right to health, 22 on right to development, and 24 on right to environment which are rights for all people. For Example see Articles 4 on right to life, 6 on liberty, and 6 on dignity and freedom which are individual rights.
167Jodoin. Note 8 above. p. 14.
168 Beyerlin. Note 33 above. p. 234.
169 Ibid. p. 234.
170 African Charter. Note 22 above. Art. 9 and 10.
171 Beyerlin. Note 33 above. p 234.
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Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention). Even though the Aarhus Convention was adopted by the United Nations Economic Commission for Europe, it is open for ratification by any member of UN based on Article 19.3 of the Aarhus Convention.172 The revised version of the African Convention on the Conservation of Nature and Natural Resources provides for the three aspects of the procedural rights in its Article XVI,173 yet to take effect.174
The rights are often also classified as positive and negative rights according to the obligations arising from them. The positive rights require states or other actors to take certain measures to protect the specific rights.175 The negative rights simply require refraining from certain action, as will be discussed in Subsection 3.3.176