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Department of Law Spring Term 2020

Master’s Thesis in Human Rights Law 30 ECTS

The Protection of Human Rights in the Context of Climate Change

Non-refoulement Obligations under Article 3 ECHR to Protect Environmental Migrants?

Author: Emma Cederberg

Supervisor: Professor Rebecca Thorburn Stern

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”The greatest threat to our planet is the belief that someone else will save it.”

– Robert Swan  

                           

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Table of contents

Abbreviations ... 2

Abstract ... 4

1 Introduction ... 6

1.1 Introducing the Subject ... 6

1.2 Aim and Research Questions ... 9

1.3 Delimitations ... 10

1.4 Method and Sources ... 12

1.5 Structure ... 14

2 Setting the Scene ... 16

2.1 Climate Change Existing Today ... 16

2.2 The Causes of Climate Change ... 16

2.3 States Responsibility to Protect Individuals ... 18

2.4 Linking Climate Change to Human Rights and Cross Border Movements ... 19

2.4.1 Recognition by the UNFCCC ... 20

2.4.2 Recognition by the Human Rights Council ... 21

2.5 Reflections ... 22

3 The Negative Impact of Climate Change on Specific Human Rights ... 24

3.1 The Right to Life ... 24

3.2 The Right to Water and Sanitation ... 25

3.3 The Right to Adequate Housing ... 25

3.4 The Right to Adequate Food ... 26

3.5 The Right to Health ... 26

3.6 Reflections ... 27

4 The Scope of Article 3 ECHR ... 29

4.1 Requirements under Article 3 ECHR ... 29

4.2 The Meaning of the Prohibited Acts in Article 3 ECHR ... 30

4.2.1 Torture ... 30

4.2.2 Inhuman or Degrading Treatment or Punishment ... 31

5 Non-Refoulement Obligations under Article 3 ECHR in the Context of Climate Change ... 33

5.1 The Principle of Non-Refoulement ... 33

5.2 Who is Responsible for the Cause of Climate Change? ... 36

5.3 Direct and Intentional Infliction of Harm Cases ... 38

5.3.1 Soering v. the United Kingdom ... 38

5.3.2 Direct and Intentional Harm in the Context of Climate Change ... 38

5.4 Purely Naturally Occurring Harm Cases ... 39

5.4.1 D v. the United Kingdom ... 40

5.4.2 N v. the United Kingdom ... 41

5.4.3 New Judgments’ of Naturally Occurring Harm Cases- An Eye Opener? ... 44

5.4.4 Purely Naturally Occurring Harm in the Context of Climate Change ... 47

5.5 The ’Predominant Cause’ Cases ... 50

5.5.1 M.S.S. v. Belgium and Greece ... 50

5.5.2 Sufi and Elmi v. the United Kingdom ... 51

5.5.3 Predominant Cause Cases in the Context of Climate Change ... 52

5.5.4 A Sui Generis Situation in the Context of Climate Change ... 55

5.6 Reflections ... 56

6 Alternative Solutions ... 59

6.1 Protecting Environmental Migrants through Hard Law ... 59

6.1.1 International Refugee Law ... 59

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6.1.2 Expanding Existing Treaties or Creating a New International or Regional Treaty 60

6.2 Protecting Environmental Migrants through Soft Law ... 61

6.3 Reflections ... 62

7 Final remarks ... 63

Bibliography ... 65

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Abbreviations

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CESCR UN Committee on Economics, Social and Cultural Rights CRC Convention on the Rights of the Child

CRPD Convention on the Rights of Persons with Disabilities

ECHR Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR European Court of Human Rights HRC Human Rights Council

ICCPR International Covenant on Civil and Political Rights

ICERD International Convention on the Elimination of all Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice

IDP Internally Displaced Persons IHRL International human rights law

IOM International Organization for Migration IPCC Intergovernmental Panel on Climate Change

OECD Organization for Economic Cooperation and Development

OHCHR Office of the United Nations High Commissioner for Human Rights UDHR Universal Declaration of Human Rights

UNDP United Nations Development Programme UNEP UN Environment Programme

UNFCCC United Nations Framework Convention on Climate Change UNHCR United Nations High Commissioner for Refugees

Refugee 1951 Refugee Convention relating to the Status of Refugees Convention

VCLT Vienna Convention on the Law of Treaties

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Abstract

The Intergovernmental Panel on Climate Change (IPCC) notes in its Fifth Assessment Report from 2014 that states are the main cause of anthropogenic gas emissions.

Furthermore, scientists predict that displacement across border for reasons of climate change will increase rapidly in the coming decades. The discourse of this thesis is whether contracting states to the European Convention on Human Rights

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(ECHR) have non-refoulement obligations not to forcibly return an individual to another state where slow onset events of climate change exists. The author’s foremost focus is to examine if deprivation of socio-economic rights in the receiving state as a result of slow onset events of climate change can constitute inhuman or degrading treatment violating Article 3 ECHR. While difficulties persist, this thesis displays that the European Court of Human Rights (ECtHR) could possible find non-refoulement obligations upon the contracting state not to remove an environmental migrant to another state where he or she risks being exposed to ill-treatment because of the adverse effects of climate change. This thesis also addresses alternative solutions of the existing problems of environmental migrants in international law. Yet, it is difficult to establish international legally binding instruments to protect environmental migrants or to include environmental migrants under Article 3 ECHR due to lack of political will and the horizontal legal system existing in international law.

                                                                                                               

1 Convention for the Protection of Human Rights and Fundamental Freedoms.

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1 Introduction

1.1 Introducing the Subject

Climate change

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is a global problem, which many believe to be our biggest challenge to overcome. The IPPC pronounced in a report from 2014 that human actions are – with a 95 per cent certainty – the main cause of the existing global warming.

3

The UN General Assembly expressed in 2018 that “climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements”.

4

Studies show that the effects of climate change predominantly lead to internal displacement.

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Nevertheless, scientists foresee that in the coming decades, climate change will have an extraordinary impact on the increased number of people displaced from their country of origin by ‘natural’ disasters

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such as floods and cyclones and by slow onset events

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such as sea level rise, drought, salinization and desertification.

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The global database of the United Nations High Commissioner for Refugees (UNHCR) shows that 70.8 million people are forcibly displaced worldwide, 25.9 million of which are refugees.

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In addition to this, the IPCC reports that by year 2050 there will be between 25 million to one billion people displaced by climate change, with 200 million being the most reliable                                                                                                                

2 Article 1.2 UNFCCC 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”.

3 IPCC, Climate Change 2014: Synthesis Report, Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, p v.

4 UN General Assembly, Report of the United Nations High Commissioner for Refugees- Part II Global compact on refugees, 2008, p 2 para 8.

5 UNHCR, Climate change and disaster displacement. See also for internal displacement: Human Rights Council, The Slow onset effects of climate change and human rights protection for cross- border migrants, 2018, para 20.

6 A ‘disaster’ is described by the UN Office for Disaster Risk Reduction as “a serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources”.

7 In Decision 1/CP.16 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (COP 16), the UNFCCC emphasized that

’Slow onset events’ include “sea level rise, increasing temperatures, ocean acidification, glacial retreat and related impacts, salinization, land and forest degradation, loss of biodiversity and desertification”.

8 Platform on Disaster Displacement: Follow-Up to the Nansen Initiative, Climate Change, Conflict and Displacement: Understanding the Nexus, 2018.

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UNHCR,Figures at a Glance.    

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estimation.

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Thus, by year 2050, around one in 45 people will be displaced by climate change.

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Consequently, this urges a serious need for international protection.

In international law, a legal definition of ‘climate refugees’ does not exist. Still, the term is often used in media.

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The UNHCR considers ‘a person displaced in the context of climate change’ a more applicable term.

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A ‘refugee’ is defined in Article 1.A.2 of the 1951 Refugee Convention relating to the Status of Refugees (Refugee Convention) as a person:

”…owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”14

Whether people forcibly displaced in the context of ‘natural’ disaster and climate change are covered by Article 1.A.2 of the Refugee Convention is uncertain. Several academics have examined the problems of including environmental migrants

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in the Refugee Convention for reasons of, for instance, persecution.

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It can be noted that people affected by climate change move across borders for different reasons.

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Some move as a result of slow onset effects of climate change linked to situations of armed conflict or persecution, which may entitle protection as a refugee under Article 1.A.2 of the Refugee Convention. Yet, many people will move without entitlement to protection                                                                                                                

10 IOM, Migration and Climate Change, 2008, p 11-12. See also Stern, The Economics of Climate Change: The Stern Review, p 56: Stern predicts 150 to 200 million to be displaced by year 2050 due to climate change.

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Ibid.

   

12 McAdam (2012) p 3. See also UNHCR, Climate change and disaster displacement.

13 UNHCR, Climate change and disaster displacement.

14 See the 1969 OAU Convention and 1984 Cartagena Declaration: the refugee definition extends to people fleeing “events seriously disturbing public order”.

15 The Human Rights Council defines ‘environmental migrants’ as “persons or groups of persons who, for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their homes or choose to do so, either temporarily or permanently, and who move either within their country or abroad” in Ninety-fourth session- Discussion note: Migration and the Environment, 2007.

16 See for example Kälin & Schrepfer, p 26, 31-34; McAdam (2011) p 12-14.

17 UNHCR, Climate change and disaster displacement. For a broader view of internal displacement see Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 20.

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as a refugee, leading to gaps in protection under international refugee law.

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These protection gaps do not signify that states shall not take action, but rather indicate the importance of international cooperation.

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As a consequence of these protection gaps, environmental migrants are not entitled to protection in international refugee law, resulting in difficulties to satisfy the enjoyment of human rights in the event of increased climate change as scientist predict. However, a state is still required to provide human rights protection to anyone under its jurisdiction, regardless of a person’s immigration status.

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For this reason, this author examines whether states have obligations under international human rights law (IHRL) to protect individuals forcibly displaced across borders in the context of slow onset events of climate change when no protection exists under international refugee law.

The use of non-refoulement obligations in the context of climate change has been proposed as possible complementary protection under IHRL.

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Non-refoulement obligations means that states have obligations not to return a person to a state where he or she risks being exposed to severe harm such as torture, inhuman or degrading treatment or punishment

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or deprivation of the right to life

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. The prohibition applies on everyone

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within a territory where the state exercises jurisdiction or has effective control.

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However, no court has yet found states accountable for non-refoulement obligations to protect a person from returning to a state adversely affected by climate change.

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In consonance with the Human Rights Council’s (HRC) report from 2018,

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this could change as adverse effects of climate change impact individuals’ human                                                                                                                

18Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, paras 6, 65.

19Ibid at 66.

20 Ibid at 58-59.

21 Ibid at 60.

22 See for example Article 33 of the Refugee Convention; Article 3 CAT; Article 3 ECHR.

23 See for example Article 6 ICCPR; Article 2 ECHR.

24 Regardless of the person’s immigration status, citizenship or nationality.

25 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 2007, paras 17, 20. See discussion about the principle of non-refoulement in Chapter 5.1.

26 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 60.

27 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, 2018.

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rights.

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The deprivation of socio-economic rights if returned to the country of origin or another state could – in some situations – constitute inhuman or degrading treatment.

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For example, flooding and sea level rise may affect the right to adequate housing.

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Droughts increases the likelihood of food security issues and the risk of water stress, which may affect, inter alia, the right to adequate food

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and the right to safe drinking

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.

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Hence, lack of human rights protection as a result of slow onset events of climate change may give rise to non-refoulement obligations upon states under Article 3 ECHR. Seeing as the amount of environmental migrants crossing borders is likely to increase if prevention measures are not taken in the near future, the author investigates this further.

1.2 Aim and Research Questions

The aim of this thesis is to examine whether a state can be held responsible under Article 3 ECHR for forcibly returning someone to a country where he or she directly or indirectly risks being exposed to climate change. To achieve the aim of this thesis, the author investigates how climate change is linked to human rights protection and displacement across borders. Potential solutions of holding a state responsible under Article 3 ECHR in the context of climate change are further discussed. Additionally, alternative solutions to protect individuals adversely affected by climate change are studied. The following questions are examined:

- Can states have non-refoulement obligations towards a displaced person adversely affected by slow onset events of climate change under Article 3 ECHR?

- What legal consequences may arise if the ECtHR establishes a violation of Article 3 ECHR in such situation?

                                                                                                               

28 Ibid at 60. See also OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, number 9.

29 Foster p 257-258: Foster discusses the issue of a return to a country where lack of protection of socio-economic rights exists.

30 Article 11 ICESCR; Article 5.e.iii ICERD; Article 14.2.h CEDAW; Article 27.3 CRC; Articles 9.1.a, 28.1, 28.2.d CRPD; Article 25.1 UDHR.

31 Article 11 ICESCR; Article 24 (c) CRC; Articles 25(f), 28(1) CRPD; UDHR art. 25.

32 Articles 11, 12 ICESCR; Article 14.2.h CEDAW; Article 28.2.a CRPD; Article 24.2.c CRC.

33 McAdam (2011) p 17.

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1.3 Delimitations

Fast onset events

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of climate change and internal displacement are not considered. The reason for this is as follows. Slow onset events are more likely to cause permanent displacement as a result of longer-lasting or potentially irreversible effects on the environment. In worst case scenarios, slow onset events may lead to an uninhabitable place to live. Slow onset events can also result in a need for human rights protection seeing as they contribute to climate change, thus affecting migration.

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Fast onset events, such as tsunamis, result in people forced to flee rapidly, which differs from slow onset events. It gives wider protection under international law since the requirements for refugee protection or temporary protection status within a state are easier to meet. Slow onset events, such as drought, do not qualify for the same protection. Thus, examining IHRL, in general, is required.

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The author intends to apply slow onset events of climate change when analyzing non-refoulement obligations under Article 3 ECHR.

This thesis only covers non-refoulement obligations under Article 3 ECHR. The non- refoulement principle in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are therefore not considered.

Guidelines from Article 33 of the Refugee Convention are taken into account in order to give the reader a broader understanding of the non-refoulement principle. The reason for only examining Article 3 ECHR is because the ECHR is argued to be the most effective human rights system in the world.

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Furthermore, whether contracting states can be held responsible under Article 3 ECHR for forcibly returning a person to another state adversely affected by climate change have been discussed in several academic publications.

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After these publications, the ECtHR has established, in several cases, a violation of Article 3 ECHR, which is of value for the research questions of this                                                                                                                

34 UNHCR states that ‘Sudden-onset disasters’ of climate change are associated with meteorological hazards including "tropical cyclones, typhoons, hurricanes, tornadoes, blizzards; hydrological hazards including coastal floods, mudflows; or geophysical hazards including earthquakes, tsunamis, volcanic eruptions”, Key concepts on climate change and disaster displacement. In this thesis the term ‘Fast onset events of climate change’ is used instead of ‘Sudden-onset disasters’.

35 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 17.

36 Verschuuren p 90.

37 Sweet & Keller p 3.

38 See for example Scott (2014); McAdam (2012); McAdam (2011); Kälin & Schrepfer.

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thesis.

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Moreover, the ECtHR has, through its interpretation of Article 3 ECHR, included more situations constituting a breach of Article 3 ECHR to send back an alien to another state.

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Therefore, the author makes an in-depth examination of case-law under Article 3 ECHR. Judgments and decisions from the ECtHR have binding effects on the parties to a particular case.

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As the ECtHR relies on previous judgments when deciding on similar matters, judgments are still of great importance for all contracting parties to the ECHR.

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The ECHR gives an individual a right to bring a claim against a contracting state for human rights violations.

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Furthermore, the ECtHR has developed a “human rights based non-refoulement jurisprudence” in Article 3 ECHR.

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Article 3 ECHR consists of several types of categories of harm feared, which can result in non-refoulement obligations upon contracting parties.

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Therefore, this thesis does not intend to discuss all types of cases consisting of movement across borders in the context of climate change. Instead, it considers situations when a person resists removal from a contracting state to the ECHR because of the adverse affects of climate change existing in the receiving state. Other factors such as the political situation within the state, the receiving state’s unwillingness to satisfy individuals’ human rights, population growth, poverty and poor infrastructure interrelate with climate change negative impacts on human rights.

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However, to answer the research questions of this thesis, focus is on displacement across borders predominantly caused by climate change.

Situations consisting of nexus dynamics where effects of climate change exist in combination with conflict or violence are not studied.

                                                                                                               

39 Paposvhili v. Belgium (2016); Savran v. Denmark (2019).

40 See for example D. v. the United Kingdom (1997); M.S.S. v. Belgium and Greece (2011); Sufi and Elmi v. the United Kingdom (2011); Paposvhili v. Belgium (2016); Savran v. Denmark (2019).

41 See Article 46 ECHR.

42 Sweet & Keller p 11, 14.

43 See Article 34 ECHR.

44 McAdam (2012) p 64. See for example Soering v. the United Kingdom (1989); D. v. the United Kingdom (1997); Paposhvili v. Belgium (2016).

45 See Chapter 5: ’Direct and intentional infliction of harm’ cases, ’Purely naturally occurring harm’ cases and ’The predominant cause’ cases.

46 See for example Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, 2009, para 29.

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1.4 Method and Sources

In the drafting of this thesis, a legal dogmatic method is applied. The legal dogmatic method is commonly described as applying generally accepted sources of law to find solutions to a legal problem.

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In international law, the sources of law are specified in Article 38 of the Statute of the International Court of Justice (ICJ) as: international conventions, international custom, general principles of law, and subsidiary to this, judicial decisions and the teaching of the most highly qualified publicists. A legal dogmatic method is therefore suitable seeing as the author shall investigate whether a state can be held responsible under Article 3 ECHR if a person is removed to another state adversely affected by climate change. Thus, the sources of law in Article 38 ICJ are considered.

The international convention examined in this thesis is predominantly the ECHR, more specifically Article 3 ECHR.

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Therefore, the primary rule of interpretation of treaties stated in Article 31 of the Vienna Convention on the Law of Treaties (VCLT) is studied.

Article 31 VCLT constitutes a codification of customary international law.

49

It signifies 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”.

50

Thus, the author analyzes how ‘inhuman or degrading treatment or punishment’ in Article 3 ECHR is applied by the ECtHR and how non-refoulement obligations in the context of climate change can be interpreted into this meaning.

Furthermore, Article 31 VCLT shall be read as a whole, while no part shall take precedence over another.

51

The ECtHR’s main purpose is to interpret and apply the ECHR.

52

The ECtHR also takes into consideration principles and rules in international                                                                                                                

47 Nääv & Zamboni p 21.

48 Article 2 ECHR is not considered in this thesis because the provision is treated within Article 3 ECHR. See for example the Grand Chamber case Paposhvili v. Belgium (2016) para 207: the Court stated, after examining Article 3 ECHR, that “In the view of this finding the Court considers that it is not necessary to examine the complaint under Article 2 of the Convention”. See also Paposhvili v. Beligum (2016) para 138: “The Chamber considers that the examination of the applicant’s complaints from the standpoint of Article 2 did not lead to a different conclusion”.

49

 

Linderfalk p 3.

50 Article 31.1 VCLT. The VCLT entered into force 27 January 1980.

51 UN General Assembly, Yearbook of the international law Commission 1966 Vol II, p 218-222.

52 Article 32.1 ECHR; Rainey et al p 83: the Court’s purpose builds on the rules of interpretation of Article 31 VCLT.

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law “applicable in relation between Contracting Parties”, which harmonize Article 31 VCLT.

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In addition, it is important to emphasize the ECtHR’s unique interpretation method. The ECtHR uses a teleological approach, by looking at the purpose and objectives of the ECHR, and an evolutive approach, by interpreting the ECHR through an effective and practical “application in the light of present-day conditions”.

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These approaches are taken into consideration while analyzing Article 3 ECHR.

To determine the ECtHR’s interpretation method of Article 3 ECHR, previous case-law related to non-refoulement obligations is investigated. The case-law is collected from the HUDOC database

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. Approaches of academics in the field of climate change and IHRL are used to bring a broader awareness to the discussion. Besides the ECHR, other international treaties, reports and recommendations from legal bodies and organizations most recurrent on the subject of climate change are studied to shed light on the correlation between IHRL, displacement across borders and climate change. The reason for this is because the practical effects of statements and recommendations of judicial bodies are observed in the ECtHR’s decisions. Recommendations from, for instance, NGOs

56

and UN agencies

57

are assessed when deciding if someone is at risk of being exposed to ill-treatment if removed to another state.

58

Therefore, other international conventions such as United Nations Framework Convention on Climate Change (UNFCCC), statements and recommendations from the International Organization for Migration (IOM), the Human Rights Council, the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the UNHCR are reviewed. It is

                                                                                                               

53 Saadi v. the United Kingdom (2008) para 62; Article 31.3.c VCLT: ”There shall be taken into account, together with the context any relevant rules of international law applicable in the relations between the parties”.

54 Rainey et al p 64, 83, the ECtHR’s approaches derives from the principles in public international law. See Wemhoff v. Germany (1968) para 8 for the teleological approach. See Airey v. Ireland (1979) para 24 for evolutive approach.

55

 

HUDOC, https://hudoc.echr.coe.int/.

56 Paposhvili v. Belgium (2016) para 187: the ECtHR stated that the assessment of the risk outlined in this case has to consider general sources such as reports from NGOs, World Health Organization and “medical certificates concerning the person in question”.

57 Sufi and Elmi v. the United Kingdom (2011) para 232: “…the Court observes that […] in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out on-site inspections and assessments in a manner which States and non-governmental organisations may not be able to do.”.

58 See also Rainey et al p 192-193.

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important to examine statements from judicial bodies as they have practical and political effects on states, even though they are not legally binding.

Furthermore, the effects of climate change on the right to life, the right to water and sanitation, the right to adequate housing, the right to adequate food and the right to health are studied. Thus, treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) are considered. The aim of studying these specific human rights is to give the reader an awareness regarding slow onset events of climate change negative impact on not only one but on numerous specific human rights. These human rights are of particular interest seeing as the lack of enjoyment of these rights due to climate change could have enormous consequences on an individual’s possibility to cater for his or her basic needs. Thus, the author analyzes whether the deprivation of socio-economic rights in the receiving state can constitute inhuman or degrading treatment under Article 3 ECHR if forcibly returned.

Lastly, the author discusses legal policy concerns and possible solutions to the complementary protection of human rights in the context of climate change. Thus, entailing the use of the de lege ferenda perspective.

1.5 Structure

This thesis structure is as follows. Chapter 2 introduces the topic of this thesis by setting the scene of existing slow onset events of climate change. Furthermore, the causation of climate change and what responsibility states have under IHRL is examined. In addition, the linkage between climate change, human rights protection and displacement across borders is discussed. Chapter 3 studies the adverse effects of climate change on socio-economic rights

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. The scope of Article 3 ECHR is thereafter described in Chapter 4. Chapter 5 examines the non-refoulement obligations under Article 3 ECHR, with a thorough analysis of whether the ECtHR’s jurisprudence can be interpreted to non-refoulement obligations in the context of climate change. In this chapter, it is studied whether deprivation of socio-economic rights can constitute ‘inhuman or                                                                                                                

59 The right to life; The right to water and sanitation; The right to adequate housing; The right to adequate food; The rights to health.

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degrading treatment’ under Article 3 ECHR if removed to another country affected by

climate change. Furthermore, Chapter 6 observes alternative solutions of non-existing

protection of environmental migrants in international law. Lastly, Chapter 7 concludes

this essay with final remarks.

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2 Setting the Scene

2.1 Climate Change Existing Today

The core of today’s international migration debate is displacement across borders due to adversely affected areas of climate change. Some regions are more affected by climate change than others.

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Every year, millions of people are forcibly displaced from their homes due to natural disasters around the world such as hurricanes in Madagascar, Cuba and the United States (US), earthquakes in Italy and Chile, droughts in South Sudan and Somalia and by floods in the Philippines, India and China.

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The global temperature has risen with 1.1 °C since the beginning of the industrial revolution.

62

Numerous international institutes, such as UNHCR, the IOM and the EU Parliament, have noticed and considered these issues. A minimum of 53 states have received people negatively affected by environmental disasters today.

63

2.2 The Causes of Climate Change

To be able to analyze the aim of this thesis thoroughly, it is important to examine what the panel of experts perceive to be the predominant cause of climate change and whether human actors are its main cause. Reports from IPCC are therefore examined to understand how the causation of climate change has changed over the last centuries due to the increase of anthropogenic gas emissions from developed countries.

The IPCC is an UN body assessing the science connected behind climate change, and has currently 195 member states with over 100 working scientists today.

64

The IPCC observes existing agreements on climate change and identifies further areas in need of more research. Historically, the IPCC has made a significant impact on the establish-                                                                                                                

60

 

McInerney-Lankford et al p 11: “…the Arctic, because of the impacts of high rates of projected warming on natural systems and human communities; Africa, because of low adaptive capacity and projected climate change impacts; small islands, where there is high exposure of population and infrastructure to projected climate change impacts; and Asian and African mega deltas, due to large populations and high exposure to sea level rise, storm surges and river flooding.”.

61

 

Schloss p 243.

62 UN News, COP 25: UN climate change conference, 5 things you need to know.

63 Schloss p 243-244.

64 IPCC, History of the IPCC; Atapattu p 19.

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ment of new international environmental treaties and agreements. The IPCC has further played a crucial role in creating the UNFCCC, which is the main treaty to decrease global warming and addresses consequences of climate change.

65

In 1990, the First Assessment Report from the IPCC was established, which emphasized the importance of international cooperation and the consequences of climate change. In this report, the IPCC stated that displacement and migration “may be the most threatening short-term effect of climate change on human settlements”.

66

A different approach has been taken by the IPCC in the Fifth Assessment Report from 2014 that since 1950, humans effect climate change and the anthropogenic gas emissions have never been as high as today.

67

In the same report, the IPCC specifies the scientific inputs to a larger extent compared to previous reports and holds that human influence affects the climate system.

68

Ever since the pre-industrial era, anthropogenic greenhouse gas emissions have increased due to economic- and population growth. As a consequence, in the last 800 000 years, methane, nitric oxide and carbon dioxide have never been higher than today and is one of the main causes of global warming.

69

Under the previous decades, climate change has continued to affect the natural and human system worldwide.

70

Continued greenhouse gas emissions increase the prospect of universal, serious and permanent effects on humans and ecosystems. Decreasing climate change requires significant and constant reductions of greenhouse gas emissions, which can limit the risk of climate change in conjunction with adaption.

71

Without further mitigation efforts to reduce gas emissions, global warming leads to widespread, severe and permanent impacts by the end of the 21

st

century. Gas emission reduction can in the long-term lead to lower the costs of mitigation and “contribute to climate-resilient pathways for sustainable development”.

72

A limitation of gas emissions is vital as                                                                                                                

65 IPCC, History of the IPCC.

66

 

IPCC, Climate Change: The IPCC Impacts Assessment, Chapter 5: Human settlement; the energy, transport and industrial sectors; human health; air quality and changes in Ultraviolet-B radiation, 1990, p 9.

 

67 IPCC, Climate Change 2014: Synthesis Report, Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, p 2.

68 Ibid at p 37, 40.

69 Ibid at p 4.

70 Ibid at p 6.

71 Ibid at p 8.

72 Ibid at p 17.

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human rights such as the right to life, food, health and water is threatened by, increased droughts, sea level rise, floods, water shortages, and other environmental changes that are all caused by gas emissions.

73

Nonetheless, as the Fifth Assessment Report of the IPCC affirms, anthropogenic gas emissions cause’ climate change, and climate change negatively affects specific human rights. Thus, states need to reduce gas emission by, for example, preventing future climate change.

2.3 States Responsibility to Protect Individuals

The most exposed persons to climate change are those already in vulnerable situations such as women, children and indigenous people and people living in poverty.

74

It is important to emphasize that environmental migrants most likely flee across borders because their basic needs will not, or cannot, be met in the country of origin.

75

For instance, homes, jobs, food and water can disappear because of droughts and sea level rise within the country.

76

This might result in people seeking protection in another state as their country of origin is adversely affected by climate change. Simultaneously, protection gaps for environmental migrants exist in international law, which can result in states forcibly returning people to countries with poor living conditions as exemplified above.

A state’s obligations to protect a person from being removed can be argued in different ways. A vertical relationship exists between duty bearers (states) and rights holders (individuals). In other words, a state has obligations to protect individuals under human rights treaties within its jurisdiction.

77

Thus, states have obligations to “respect, protect,

                                                                                                               

73

 

OHCHR, Human Rights and Climate Change: Overview.

   

74 Verschuuren p 90. See also Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, 2009, paras 42-54 for a thorough discussion of the most exposed groups.

75 Compare with Prieur p 234.

76 Noteworthy, a difference between climate change in a developed and a developing country exists.

In a developed country, it is more likely that the state has a better resource system. This results in a better chance of protecting individuals’ human rights than in a developing country, which have problems with protecting individuals’ human rights without any effects of climate change.

77 Atapattu p 41.

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and fulfill the human rights of all persons”.

78

One can therefore argue that states have non-refoulement obligations not to remove a person to a state adversely affected by climate change if the person’s socio-economic rights cannot be protected. However, the vertical relationship can give rise to problems regarding climate change issues. Atapattu argues that it can be difficult to identify a state as a duty bearer in a climate change- related situation because the harm cannot be derived from a particular entity.

79

Furthermore, the issue of finding states accountable for slow onset events of climate change has been argued to be irrelevant under the ECHR by several scholars.

80

The difficulties of finding one or all states accountable for the severe harm is thoroughly discussed in Chapters 5.2 and 5.5.3.

2.4 Linking Climate Change to Human Rights and Cross Border Movements

This section examines how climate change, human rights protection and displacement across borders are linked. No climate change treaty explicitly confers an obligation for states to protect environmental migrants.

81

However, the negative effects on the protection of human rights is recognized by, inter alia, the UNFCCC

82

and the Human Rights Council

83

.

84

Hence, international bodies consisting of states have recognized the link between human rights and climate change. Thus, it is relevant to observe the link between human rights and climate change seeing as the ECHR is a living instrument and shall be interpreted in the light of present-day conditions by using an evolutive

                                                                                                               

78 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para. 10.

79 See Atapattu p 41.

80 See for example Scott (2014) p 409; Kolmannskog & Trebbi p 726; McAdam (2012) p 89; Kälin

& Schrepfer p 65-66.

81 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 76.

82 UNFCCC, Decision 1/CP.16 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, (COP 16); UNFCCC, The Paris Agreement, (COP 21), 12 December 2015.

83 See for example Human Rights Council, Human rights and climate change, 2014; Human Rights Council, Human rights and climate change, 2015: Human Rights Council, Human rights and climate change, 2018; Human Rights Council, Human rights and climate change, 2019.

84 See Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 22.

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approach.

85

For this reason, it is possible for the ECtHR to establish a link between human rights and climate change, even though it has not yet considered the connection.

2.4.1 Recognition by the UNFCCC

The UNFCCC is ratified by 197 states and entered into force in 1994.

86

The main purpose of the UNFCCC is to attain “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.

87

In addition, contracting parties shall reduce or prevent anthropogenic gas emissions.

88

The international agreement of the Kyoto Protocol is connected to the UNFCCC and also requires contracting parties to reduce gas emissions by setting internationally binding goals. The principle of ‘common but differentiated responsibilities’ under the Kyoto Protocol puts more obligations on developed countries (Annex-I Parties) than on developing countries (Non-Annex I Parties). The reason for this is because developed countries are the main cause of anthropogenic gas emissions in the last 150 years.

89

Developed countries are also obligated to give financial support to developing countries affected by climate change.

90

Neither the UNFCCC nor the Kyoto Protocol explicitly mention anything about the correlation between human rights, displacement of people and climate change.

However, in 2011 the UNFCCC recognized a link in the Cancun Adaption Framework in paragraph 8: “Parties should, in all climate change related actions, fully respect human rights”. Furthermore, in the preamble to the Cancun Adaption Framework’s the contracting parties note the Human Rights Council’s resolution 10/4 on ‘Human rights and climate change’, which recognizes climate change impacts on the enjoyment of

                                                                                                               

85 See Chapter 1.4 by interpreting the ECHR through an effective and practical “application in the light of present-day conditions”.

86

 

UNFCCC, What is the United Nations Framework Convention on Climate change?.

 

87 Article 2 UNFCCC. In the preamble to the UNFCCC, the most vulnerable parts in the context of climate change are recognized, for instance, low-lying and small islands.

88 See Article 4.1.c UNFCCC; Preamble UNFCCC ”Recognizing […] action taken on limiting greenhouse gas emissions.

89

 

UNFCCC, What is the Kyoto Protocol?; OECD, List of Annex I Countries: note that developed states are “Annex I” countries, belonging to the OECD.

 

90 UNFCCC, What is the United Nations Framework Convention on Climate Change?: Developed countries have agreed to give financial support by loans and grants, handled by the Global Environment Facility.

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specific human rights.

91

The last agreement made by the contracting parties to the UNFCCC is the Paris Agreement. The foremost purpose of the Paris Agreement is to hold a global temperature rise “well below 2°C above pre-industrial levels and of pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, while recognizing that this would significantly reduce the risks and impacts of climate change”.

92

Furthermore, the contracting parties acknowledge that “climate change is a common concern of human kind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights…”.

93

The UN Environment Programme (UNEP) has advised that a gas emission reduction of 7.6 per cent every year from 2020 to 2030 is required to meet the goal of an increase to 1.5°C above pre-industrial levels.

94

2.4.2 Recognition by the Human Rights Council

The Human Rights Council (HRC) is an UN inter-governmental body consisting of 47 member states, which address human rights violations, in order to ensure that all states protect individuals’ human rights within their jurisdiction. The HRC also monitors if states fulfill their obligations under IHRL.

95

The HRC has repeatedly emphasized the issue of climate change impacts on human rights protection and displacement across borders.

96

In a resolution from 2019, the HRC highlighted the following:

”the adverse effects of climate change have a range of implications, which can increase with greater global warming, 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 enjoyment of highest attainable standard of physical and mental health, the right to adequate housing, the right to self-determination, the rights to safe drinking water and sanitation, the right to work

                                                                                                               

91 UNFCCC, Decision 1/CP.16 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (COP 16), preamble.

92 UNFCCC, The Paris Agreement, Article 2.1.a: the Paris Agreement entered into force on 4 November 2016, 187 out of 197 Parties to the IPCCC have ratified it.

93 UNFCCC, the Paris Agreement, preamble.

94 UNEP, Emissions Gap Report 2019.

95 OHCHR, Welcome to the Human Rights Council.

96 See for example Human Rights Council, Human rights and climate change, 2014; Human Rights Council, Human rights and climate change, 2015; Human Rights Council, Human rights and climate change, 2018.

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and the right to development, and recalling that in no case may a people be deprived of its own means of subsistence”.97

In addition, the HRC reaffirmed the objectives and principles of the UNFCCC and that the Paris Agreement indicates climate change to be a common concern for all contracting parties.

98

The HRC continuously recognizes the importance of states to take mitigation measures to prevent the negative impacts climate change have on human rights and to guarantee responsibility for the damage caused by climate change.

99

2.5 Reflections

Chapter 2 shows the current climate change situation to be critical, constantly becoming worse each year. The Fifth – and latest – Assessment Report from the IPCC indicates the main cause of climate change to be the use of anthropogenic gas emissions, which also affects socio-economic rights negatively. States are obligated to protect the enjoyment of human rights within their jurisdiction under human rights treaties.

However, since no current treaty exists to protect individuals from deprivation of human rights in the context of climate change it is difficult to establish how states obligations shall be interpreted. Some may question whether the agreements and recommendations of climate change existing in international law today are successful seeing as states are not reducing gas emission overall, let alone reducing them enough to decrease future climate change. However, others may argue that since the UNFCCC documents, such as the Cancun Agreement and Paris Agreement, indicate a willingness of states towards reducing gas emissions.

100

Atapattu emphasizes that gas emissions already exist in the atmosphere resulting in a great impact on not only our generation but generations to come. Recognition by states of the link between climate change and human rights is needed considering that the enjoyment of individual’s human rights will be diminished if climate change is not addressed.

101

The connection between human rights and climate change recognized by for instance the Human Rights Council, which is composed by                                                                                                                

97 Human Rights Council, Human rights and climate change, 9 July 2019. The negative effect of climate change on the enjoyment of specific human rights is discussed in Chapter 3.

98 Ibid: In the preamble, the HRC also stresses the importance of limiting the global temperature as stated in the Paris Agreement.

99 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, paras 9-10. See also footnote 96.

100 This is in line with Atapattu p 35.

101 Atapattu p 30.

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states, is of great importance as slow onset events of climate change impacts the

enjoyment of human rights. This connection indicates that the ECtHR, at least in the

near future, can make such a connection seeing as they shall interpret the ECHR in the

light of present-day conditions. The following Chapter therefore clarifies the

consequences climate change has on individuals’ socio-economic rights.

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3 The Negative Impact of Climate Change on Specific Human Rights

Human rights treaties, such as the ICRSCR, impose obligations upon states to, without any discrimination, respect and protect individuals’ human rights.

102

Therefore, the right to life, the right to water and sanitation, the right to adequate housing, the right to adequate food and the right to health is studied.

103

The purpose of observing these rights is to determine in Chapter 5 whether the deprivation of socio-economic rights could due to climate change constitute in inhuman or degrading treatment, giving rise to non-refoulement obligations under Article 3 ECHR. Although, it should be emphasized that this is controversial considering that environmental migrants do not have protection in international law. However, even though states have not ratified any treaty protecting environmental migrants, this chapter demonstrates that if specific human rights are not satisfied when returned to a state adversely affected by climate change, the individual’s chances of having their basic needs met can be slim.

3.1 The Right to Life

The right to life is covered in several international instruments

104

and has absolute character. States are obliged to ensure the right to life by taking positive measures.

105

The right to life is at great risk because slow onset events of climate change can limit access to basic needs and resources.

106

The IPCC predicts, with high confidence, that

                                                                                                               

102 UN General Assembly, Addressing human rights protection gaps in the context of migration and displacement of persons across international borders resulting from the adverse effects of climate change and supporting the adaption and mitigation plans of developing countries to bridge the protection gaps, para 37.

103 These specific human rights adversely affected by climate change are not exhaustive. See for example The right to self-determination Article 1.1 ICESCR; The right to a livelihood Article 25 UDHR; The right to freedom of movement Article 14 UDHR; The right to culture and property Article 17 UDHR.

104

 

Article 6 ICCPR; Article 6 CRC; Article 3 UDHR; Article 2 ECHR.

105 Human Rights Committee, General Comment No. 6- Article 6 (The right to life), paras 1, 5. See also Opux v. Turkey (2009) paras 128-130.

106 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 36.

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people will suffer from death due to climate change by, for instance, floods, droughts, fires and heath waves.

107

3.2 The Right to Water and Sanitation

Articles 11 and 12 ICESCR cover the right to water and sanitation. The UN General Assembly recognized it to be a human right to access “safe and clean drinking water and sanitation” and is crucial for the fulfillment of all human rights.

108

According to the World Bank a temperature rise of 2°C is predicted to affect the access to water of one to two billion people. This severe deficit of water access implies a risk that many people will not be able to meet their basic needs.

109

Decrease of snow cover and loss of glaciers will increase, which affect one out of every six person worldwide as people access water from mountain chains.

110

A temperature rise with one degree could affect water necessities for 50 million people and a rise with 5 degrees could result in loss of Himalayan glaciers subsequently leading to loss of water necessities for hundreds of million of people in India and a quarter of China’s population.

111

3.3 The Right to Adequate Housing

The right to adequate housing is covered under several human rights treaties.

112

The right is defined as: “the right to live somewhere in security, peace and dignity”.

113

This right is at risk of slow onset events of climate change because people are forced to move in such situations risk facing poor living conditions.

114

Today, one billion people are                                                                                                                

107

 

IPCC, AR4 Climate Change 2007: Impacts, Adaptation and Vulnerability, p 393.

108

 

UN General Assembly, The human right to water and sanitation, 2010, para 1.

109 World Bank, World development report 2010: Development and Climate Change, p 5.

110 Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, 2009, para 29; IPCC, AR4 Climate Change 2007: Impacts, Adaptation and Vulnerability, p 43, 48-49.

111

 

McInerney-Lankford et al p 16.

 

112 Article 11 ICESCR; Article 25.1 UDHR; Article 5.e.iii ICERD; Article 14.2 CEDAW.

113 Human Rights Council, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, 2009, para 35.

According to Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 42, the right to adequate housing includes: ”protection against forced evictions; security of tenure; access to affordable housing; habitability and accessibility; and availability of facilities, services, materials, and infrastructure. The right to adequate housing also means providing adequate privacy, space, security, and location.”.

114 Human Rights Council, The Slow onset effects of climate change and human rights protection for cross-border migrants, para 42.

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