Climate Change in the Human Rights Committee

The environment and climate change are amongst the most pressing issues for human rights. High Commissioner for Human Rights Michelle Bachelet has called it “the greatest threat to human rights” and fifteen children submitted a communication before the UN Committee on the Rights of the Child (CRC) in September.

Even though it seems that especially children and young people are leading this long-needed movement, thus seeking help from the CRC, the UN Human Rights Committee seems to be the UN treaty body that has been most active on the topic in the course of the past year.

The Committee has not only addressed issues concerning the interface between human rights and the environment more often than ever before, it has also very quickly intensified its jurisprudence from a mere notion of possible implications of environmental degradation on the right to life in its General Comment No. 36 over expanding this notion on other rights of the International Covenant on Civil and Political Rights (ICCPR), to ruling on the lawfulness of a deportation of a climate migrant less than a year later. This post traces the Committee’s skyrocketing journey over the past year.

General Comment No. 36 and the Right to a Life with Dignity

A bit over a year ago, the Committee finalized its General Comment No. 36 on the Right to Life after working on it for four years. This General Comment raises a variety of interesting issues. One of them is the right to life in the context of environmental harm:

Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. (para. 62)

Given the fact that when adopting General Comment No. 36, the Committee had no jurisprudence on the interface between the right to life and the environment, one can easily argue that including environmental degradation and climate change into the General Comment was a bold step. One might even argue that it was a step backwards. A few months earlier, then Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John Knox, had argued for recognizing an independent right to a healthy environment before the Human Rights Council. Thus, by linking environmental harm to one – and only this one – ICCPR-right, the Committee has taken a much more restrictive standpoint.

It has to be noted, however, that General Comment No. 36 does not indicate for environmental degradation and climate change to be understood as threats to life. Statements concerning these issues exclusively allude to the right to live one’s life with dignity (see paras. 3, 62). As will become clear in its following practice, the Committee has created a space for its own interpretation of the elements necessary for a life with dignity, which can include the exercise of other rights, possibly even outside the ICCPR.

Environmental Pollution, the Right to Life and other Rights

In its 126th session this July, the Committee had its chance to use its general ideas of General Comment No. 36 in an individual communication on environmental pollution. In Portillo Cáceres v. Paraguay, it combined approaches of regional human rights mechanisms.

Finding a violation of article 6 ICCPR not only in the case of the deceased Mr. Rubén Portillo Cáceres, but also for the surviving family members, the Committee made use of the tool it had created with General Comment No. 36:

States parties should take all appropriate measures to address the general conditions in society that may […] prevent individuals from enjoying their right to life with dignity (para. 7.3).

Further practice of the Committee will be necessary to define the States’ obligations on the right to life with dignity, especially regarding the question if, and to what extent, a life with dignity requires the safeguarding of a minimum of other rights.

The Committee did not only find a violation of article 6 ICCPR, but also of article 17 ICCPR. This constitutes a further step towards recognizing environmental degradation as a threat not only to life, but possibly to a variety of rights.

The Committee found a violation of article 17 ICCPR because the pollution had made it impossible for the authors to live off their natural resources and harvest their goods (para. 7.8). One may speculate that by connecting the right to family life to the feasibility of farming, the Committee has included a variety of economic, social and cultural rights into the scope of article 17 ICCPR. However, it needs to be stressed that the authors of this communication were traditional peasants. As the Committee calls them “campesinos”, it seems that in the view of the Committee, these individuals were not just farmers but a special group particularly bound by their traditional way of living. The Committee seemingly treats them like a minority rather than simply a group of people with the same profession, thus borrowing from its much more established jurisprudence on article 27 ICCPR. It is improbable that it would consider economic, social and cultural rights to be generally a part of article 17 ICCPR.

 Climate Change

After this important decision on environmental pollution in the summer, the Committee has now taken up on climate change. In its last session of the 2019, it has closed with two important decisions on this matter:

In its Concluding Observations on the initial report of Cabo Verde, the Committee has, for the first time, used the term climate change in a set of concluding observations. In fact, apart from General Comment No. 36, there had so far been no mentioning of climate change by the Committee at all.

The Committee did not only recognise the particular vulnerability of small island States to the effects of climate change, it also made quite detailed recommendations on sustainable development and resilience to climate change (paras. 17, 18).

It is worth noting that another UN Human Rights Treaty Body, namely the Committee on the Elimination of Discrimination against Women, has also formulated Concluding Observations in this regard. CEDAW is the only UN treaty body to have recognised the particular vulnerability of certain States to climate change and has asked States not only to provide sustainable development plans but also to develop “disaster management and mitigation plans” (Concluding Observations on Tuvalu, para. 56. See also CEDAWs General recommendation No. 37, paras. 73, 78 (a)).

Like CEDAW, the Human Rights Committee stressed the vulnerability of certain groups in its Concluding Observations on Cabo Verde. It noted that:

the development of all projects that affect sustainable development and resilience to climate change should include the meaningful and informed participation of all populations (para. 18).

Finally, the Human Rights Committee dealt with the question of the lawfulness of a deportation of a climate migrant in its past November session. Ioane Teitiota is a Kiribati national who tried to apply for asylum status in New Zealand claiming that his home island was becoming inhabitable due to climate change. He described the generally deteriorating situation of his home island, such as a lack of food and water supply and violent land disputes due to rising sea levels.

While the issue of climate migration has long been handled as a future challenge to international law at large, a timely solution is needed. The Council of Europe has just recently recognised its responsibility to “develop protections in the asylum systems of member States and in international law for people fleeing long-term climate changes in their native country” (para. 5.4). Yet, there has not been a legal solution to climate migration so far. The Human Rights Committee has now had the opportunity to contribute its views. While the Committee does not apply Refugee Law, it has developed a very ample jurisprudence on the principle of non-refoulement. According to the Committee, no person shall be removed from a state’s territory where there are substantial grounds for believing that outside of the state’s territory there is a real risk of irreparable harm to, including, but not limited to, their rights under article 6 and 7 ICCPR.

While the Committee concluded that the deportation to Kiribati did not constitute a violation of the authors rights under article 6 of the ICCPR, the decision is a valuable first step as it sets important standards for comparable cases. It is crucial to keep in mind that in decisions on non-refoulement, the Committee does not assess whether the author of a communication would face irreparable harm if deported (see General Comment No. 31, para. 12), but rather limits itself to establish whether the deporting State’s assessment of the author’s risk was clearly arbitrary or amounted to a manifest error or a denial of justice.

Consequently, the focus of this decision has not been to assess in how far the general living situation in Kiribati is problematic, but only whether the New Zealand authorities conducted an arbitrary individual risk assessment. The author was not found to be in a particularly vulnerable situation (see para. 9.7). However, the Committee did use the opportunity to pave the way for future refoulement communications of people fleeing the effects of climate change:

The Committee recognizes that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change (para. 9.9)

[…]

The Committee is of the view that without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized. (para. 9.11)

Even though the Committee did see that the situation in Kiribati was sufficiently precarious as to raise issues under article 6 ICCPR, the crucial factor here seems to be timing. Although the Committee did recognize that the impacts take some time before they amount to sufficiently serious harm, it dismissed the complaint finding that the general human rights situation in Kiribati was not yet intolerable (see para. 9.3) and that there remained enough time for the receiving State to take the necessary measures to protect its citizens:

However, it notes that the timeframe of 10 to 15 years, as suggested by the author, could allow for intervening acts by the Republic of Kiribati, with the assistance of the international community, to take affirmative measures to protect and, where necessary, relocate its population. (para. 9.12)

What is interesting to note is that the Committee did not only make a quite general statement on the obligations of all receiving and sending States respectively, it also addressed the international community as a whole (paras. 9.12, 9.13).

According to General Comment No. 36, States parties are the entities that hold the legal obligation to respect and ensure the right to life. Now, by asking for “international efforts” and “the assistance of the international community”, the Committee introduced an obligation of cooperation that is unprecedented. So far, the only occasion in which the Committee has indicated a responsibility of States as members of the international community to protect lives was concerning acts of aggression (General Comment No. 36, para. 70).

Finally, this decision was completed in an unusual manner. After finding that the New Zealand authorities conducted an individualized assessment of the author’s case that was in no way in conflict with the Covenant, the Committee reiterated that this finding was:

without prejudice to the continuing responsibility of the State party to take into account in future deportation cases the situation at the time in the Republic of Kiribati and new and updated data on the effects of climate change and rising sea-levels thereupon (para. 9.14),

thus stressing the notion that in 2015, at the time of the national decision, it just wasn’t bad enough yet.

It is worth noting that there are two dissenting Opinions indicating an intense discussion within the Committee. Both Ms. Sancin’s an Mr. Muhumuza’s dissenting opinion found a violation of the author’s right to life. As Mr. Muhumuza indicated:

It would indeed be counterintuitive to the protection of life, to wait for deaths to be very frequent and considerable; in order to consider the threshold of risk as met (para. 5).

In light of para. 9.14 of the decision and this dissenting opinion, it will be interesting to see when the Committee shifts from granting the deporting States discretion in their individual risk assessment to finding non-refoulement violations based on the general living conditions in a State seriously affected by climate change.