6. Climate in the UN Human Rights System
The various UN human rights bodies are increasingly devoting attention to the effects of climate change on the realisation of human rights.
The main instruments for the protection of human rights globally are the UN human rights conventions. The two most general of these are the UN International Covenant on Civil and Political Rights (ICCPR) and the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). Both emerge from the UN Declaration on Human Rights of 1948. In addition, there are more specialised human rights conventions, including the UN Convention on the Rights of the Child, the UN Convention on the Elimination of All Forms of Discrimination Against Women, the UN Convention against Torture, the UN Convention on the Elimination of All Forms of Racial Discrimination, and the UN Convention on the Rights of Persons with Disabilities.1The UN International Covenant on Civil and Political Rights, the UN International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women have been made into Norwegian law and will prevail in cases of conflict with other legislation, cf. Sections 2 and 3 of the Human Rights Act. The UN Convention on the Elimination of All Forms of Racial Discrimination is incorporated into the Equality and Anti-Discrimination Act.
There are no general human rights provisions on climate or environmental rights in the UN human rights conventions.2See Chapter 7 of the report on procedural rights. The link between climate change and human rights has nevertheless been pointed out at several levels in the UN system.3See Chapter 3 of the report on the link between climate change and human rights. In 2008, the UN Human Rights Council adopted a separate resolution that recognised the link between climate, the environment and human rights, and has since then regularly made resolutions on the topic.4A/HRC/RES/7/23. The most recent of these came in July 2019.5A/HRC/RES/41/21, citing previously adopted resolutions concerning climate and the environment. Both the Human Rights Council and the UN High Commissioner for Human Rights have on several occassions highlighted that climate change poses a significant threat to the realisation of human rights.6Ibid. Among the rights threatened are the right to life, the right to health, the right to an adequate standard of living, indigenous rights and the rights of several vulnerable groups in society.7Ibid. See also Burger and Wentz, “Climate Change and human rights” in May and Daly (eds.) Human Rights and the Environment. Legality, Indivisibility, Dignity and Geography (2019) p. 199 ff.
Recognition of the close relationship between effective human rights and a viable climate has also been evident in the practices of various UN human rights bodies. This chapter will first review the practices of the UN treaty bodies and the rights that have been given most attention in a climate and environmental context. The chapter is divided by rights and addresses the right to life and the right to privacy and family life (6.3) and the right to health (6.4).8Attention has also been given to a number of other rights. Most often, the treaty bodies have mentioned in their various types of statements that the fulfilment of these rights can be negatively affected or threatened by the effects of climate change, without mentioning this further. In September 2019, for instance, the Women’s Committee, the Children’s Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of Persons with Disabilities, and the Committee on the Rights of Migrant Workers and Members of Their Families made a joint statement on climate change and human rights, highlighting how the effects of climate change threaten the realization of rights in the respective conventions they are charged with monitoring. Available on https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998&LangID=E. The chapter also looks at climate-related recommendations to Norway from the UN treaty bodies and the UN Special Rapporteur on Human Rights and the Environment (6.5). Before entering into these material issues, we will make a few brief remarks about the UN treaty bodies and their practices (6.2).
6.2. UN treaty bodies and their practices
6.2.1. UN treaty bodies
For each of the human rights conventions there are separate treaty bodies. The UN has a total of ten such committees. These are tasked with promoting, monitoring and enforcing States’ compliance with the rights enshrined in the individual Convention. They do this through general comments on the convention rights, concluding observations on individual States’ periodic reports and hearing complaints made by individuals against the States.9It is a prerequisite that the individual Convention State has joined the individual complaints scheme of the relevant UN Convention in order for the relevant committee to process them. Norway has currently joined the individual appeal system for four conventions, specifically the Convention on Civil and Political Rights, the Convention on Torture, the Women’s Convention, and the Convention on Racial Discrimination. See NIM’s annual report from 2019, p. 194 f., available on https://www.nhri.no/
6.2.2. The significance of the treaty bodies’ statements
General comments, concluding observations and decisions on individuals’ appeals are not in themselves legally binding on Convention States. Nonetheless, the treaty bodies’ decisions on appeals from individuals can carry “considerable weight” in a Norwegian context.10In Rt. 2008, p. 1764 paragraph 81, the Supreme Court stated that “a convention interpretation made by a UN human rights committee must carry considerable weight as a source of law.” The judgement is referred to in HR-2017-2247-A, paragraph 19. As for treaty body statements that appear to be “a clear interpretation of a convention,” the Supreme Court has stated that these types of statements are to be given “considerable weight.”11See, e.g. HR-2018-2096-A, paragraphs 14-16 with further references. The Supreme Court places less emphasis on statements expressing a recommendation on optimal practice.12See e.g. Rt. 2009 p.1388, paragraph 78. This view also appears in later judgements, see e.g. HR-2019-2301-A. The legal significance of a statement must therefore be assessed on the basis of how well it can be anchored in the convention text.
The Supreme Court has not explicitly taken a position on the weight of the concluding observations on individual States’ reports, but these types of committee statements are state-specific and therefore have less weight in the general interpretation of human rights obligations. The observations also often express the ideal design of the practice, without the committees stating whether there are violations of human rights obligations.13For a more general overview of the importance of the UN committees’ statements, see e.g. Hellerslia, “Uttalelser fra FN-komiteene – en strukturell analyse”, Jussens Venner, no. 53 (2018) pp. 71–111 and Strand, “FNs menneskerettskonvensjoner og FN-komiteenes håndheving av dem” in Høgberg and Sunde (eds.), Juridisk metode og tenkemåte (2019) pp. 420–451. See also NIM’s annual report from 2019, p. 104 f., available on https://www.nhri.no/.
6.3. The right to life and the right to private and family life
6.3.1. International Covenant on Civil and Political Rights (ICCPR)
The right to life and the right to privacy are enshrined ICCPR, Articles 6 and 17, respectively. The rights in this Convention are monitored by the UN Human Rights Committee.
In 2018, the Human Rights Committee made a general comment on the right to life.14CCPR/C/GC/36. The following quotes are from paragraph 62 of the comments. In this comment, the Committee recognises the connection between the right to life and the consequences of climate change and environmental degradation. The Committee states that “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.” The Committee also emphasises that the right to life should not be interpreted narrowly, and that it also “concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their premature or premature death, as well as to enjoy a life with dignity.”
As regards the duty of individual States to secure the right to life, the Committee assumes that States’ obligations under international environmental law have an impact on the interpretation of Article 6, and vice versa. The implementation of States’ duty to ensure lives depends, according to the Committee, on States taking action to preserve and protect the environment and to prevent environmental degradation, pollution and climate change.15Ibid., “obligations of States parties under international environmental law should thus inform the contents of article 6 of the Covenant, and the obligation of States parties to respect and ensure the right to life should also inform their relevant obligations under international environmental law. Implementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors.”
The Human Rights Committee has also dealt with certain individual appeals concerning the right to life and the environment. In Portillo Cáceres v. Paraguay, a family in Paraguay complained about the agricultural industry’s use of pesticides that, according to the complainants, had led to the poisoning of several members of the local community and the death of one family member.16 Portillo Cáceres v. Paraguay, case No. 2751, 2016, CCPR/C/126/D/2751/2016. The Committee concluded that Paraguay had not adequately enforced environmental regulations and addressed the negative consequences of the pesticides, and that the complainants’ right to life and private and family life had been violated.17There were also violations of other rights, including the right to a fair trial. The Committee referred to international legal developments, including ECtHR practice, which recognises the existence of an “undeniable link” between environmental protection and the realisation of human rights, and which establishes that environmental degradation can negatively affect the right to life.18See section 7.4 of the decision. The Committee noted that States must implement “all appropriate measures” to address “general conditions in society,” including pollution, which may entail threats to the right to life or prevent individuals from living a life of “dignity.”19 Portillo Cáceres v. Paraguay, case No. 2751, 2016, CCPR/C/126/D/2751/2016, paragraph 7.3. The Committee stressed that the duty to safeguard applies even if lives have not been lost.20Ibid. The pollution was found to pose “reasonably foreseeable” threats to life, as the pesticides affected drinking water sources, crops and grazing animals. The Committee pointed out that the authorities had been made aware of the threat posed by the pesticides. The right to life under Article 6 of ICCPR was therefore infringed.
The Committee also concluded that there was a breach of the right to private and family life under Article 17 of the ICCPR. The Committee’s reasoning was as follows:
“[w]hen pollution has direct repercussions on the right to one’s private and family life and home, and the adverse consequences of that pollution are serious because of its intensity or duration and the physical or mental harm that it does, then the degradation of the environment may adversely affect the well-being of individuals and violation constitutes of private and family life and the home.”21See Section 7.8 of the decision.
This case against Paraguay constituted part of the basis for a later decision by the Human Rights Committee in Teitiota v. New Zealand.22 Teitiota v. New Zealand, case no. 2728/2016 (delivered 24 October 2019, published 7 January 2020, CCPR/C/127/D/2728/2016). The decision concerned whether climate displaced persons may be entitled to international protection under Article 6 of the ICCPR, which also provides protection against return if there is a real risk of loss of life.23The case is discussed in more detail in Chapter 8 of the report on climate displaced persons. Furthermore, violations of the right to life and the right to private and family life have also been raised by the applicants in Torres Strait Islanders v. Australia, which is under consideration by the Human Rights Committee.24The case is discussed in more detail in Chapter 9 of the report on climate action based on human rights.
6.3.2. United Nations Convention on the Rights of the Child
Children’s right to life is specifically protected under Article 6 of the UN Convention on the Rights of the Child, which is monitored by the UN Committee on the Rights of the Child. Norway has not ratified the individual complaints mechanism of the Committee on the Rights of the Child. This means that any individual appeals before this Committee cannot be given as much weight as individual appeal decisions by committees where Norway is affiliated.
The UN Committee on the Rights of the Child has not yet decided on any individual appeal about children’s right to life in the face of climate change. But one appeal is at the time of writing being heard, Sacchi et al. v. Argentina et al. The appellants, among them Swedish Greta Thunberg, argue that a number of States violate several of the rights of the Convention on the Rights of the Child, including children’s right to life, by not taking measures to prevent greenhouse gas emissions.25The case is discussed in more detail in Chapter 9 of the report on climate action based on human rights. The appeal points out, firstly, that none of the cited States, Argentina, Brazil, France and Germany, have done enough to reduce their emissions in line with the Paris Agreement’s requirement for “highest possible ambition” and that the emission levels of the States will not contribute to the realisation of the 1.5-degree target. Secondly, the appellants point out that the States as members of the G20, which collectively account for 84 percent of the world’s emissions, have not adopted all available legal, diplomatic and economic measures to protect children from life-threatening carbon emissions. The appellants argue that this violates children’s right to life (Article 6), in addition to the right to health (Article 24), culture (Article 30) and the best interests of the child (Article 3).
6.4. The right to health
6.4.1. The UN’s International Covenant on Economic, Social and Cultural Rights (ICESCR)
The right to health is enshrined in Article 12 of the ICESCR. The provision also explicitly mentions the environment. States should work for “the improvement of all aspects of environmental and industrial hygiene,” to ensure the right to health.
The United Nations Committee on Economic, Social and Cultural Rights (the ICESCR Committee) monitors this Convention. In general comments, the Committee has described in detail what the right to health in Article 12 entails. Here, the Committee has stated that the right to health “embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinates of health, such as […] a healthy environment.”26E/C.12/2000/4, paragraph 4.
Furthermore, the Committee has noted that States should “prevent and reduce the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions” and “enact and enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries.”27Ibid, paragraph 15. The Committee has further noted that citizens must have access to effective appeal mechanisms and courts in order to safeguard this right.28See paragraph 59.
6.4.2. United Nations Convention on the Rights of the Child
Article 24 of the Convention on the Rights of the Child protects children’s right to health. Environmental factors are also explicitly mentioned in this article.29Environmental factors are also mentioned in Article 28 of the Convention on the Rights of the Child, which protects children’s right to education.
The Committee on the Rights of the Child refers to the effects of climate change on the realisation of children’s right to health in a general comment on children’s right to the highest attainable standard of health under Article 24. In the general comment, the Committee states that there is a “growing understanding of the impact of climate change […] on children’s health”30CCPR/C/GC/15, paragraph 5. Furthermore, the Committee identifies environmental pollution as a threat to children’s right to health, and the Committee expresses concern that environmental problems may hinder or adversely affect the implementation of the right to health.31Ibid.
The Committee on the Rights of the Child further states that environmental measures should address climate change, “as this is one of the biggest threats to children’s health and exacerbates health disparities”, and that States should therefore place “children’s health concerns at the centre of their climate change adaptation and mitigation strategies.”32Ibid, paragraph 50.
The Committee has not decided on any individual appeals concerning children’s right to health and climate change. This, however, is one of the foundations for the aforementioned appeal Sacchi et al. v. Argentina et al.
6.5. Recommendations for Norway from UN treaty bodies and the UN Special Rapporteur
6.5.1. Recommendations from the treaty bodies
The various treaty bodies have made a number of recommendations to Norway in concluding observations following government reports.33See NIM’s report “Compilations of Recommendations to Norway” for a collection of all the treaty bodies’ recommendations for Norway from 2017-2020. Available on nhri.no. The recommendations may be advice on optimal practice, or based on applicable law. As mentioned, they are not legally binding, but they provide guidance on how the treaty bodies believe Norway can best meet its human rights obligations under the various human rights conventions.
In recent times, the UN treaty bodies have devoted more and more attention to climate in their cocnluding observations to individual States. While in the years 2008-2014 there were five or fewer referrals per year, in the years 2016-2018 there have been more than 15 annually. In 2018, there was a marked increase to 33 referrals, compared to 18 referrals the year before.34Center for International Environmental Law and The Global Initiative for Economic, Social and Cultural Rights, ‘States’ Human Rights Obligations in the Context of Climate Change. 2019 Update’s p. 6, available on https://www.ciel.org/wp-content/uploads/2019/03/HRTB-Feb.-2019-update-2019-03-25.pdf. Furthermore, the UN Committee on the Rights of Persons with Disabilities and the UN Committee on the Protection of The Rights of Migrant Workers have referred to climate change in recent concluding observations. Norway has also received recommendations concerning climate change from the ICESCR, the Committee on the Rights of the Child and the Commission on the Status of Women.35See E/C.12/EN CO/CO/6, paragraphs 10-11, CRC/C/CO/CO/5–6, section 27 and CEDAW/C/CO/CO/9, section 14, respectively.
6.5.2. Recommendations from the UN Special Rapporteur on Human Rights and the Environment
The UN Special Rapporteur on Human Rights and the Environment is tasked with promoting implementation of and compliance with States’ human rights obligations in the area of climate and the environment.36A/HRC/RES/37/8. The mandate was created in 2012. One of the Special Rapporteur’s main tasks is country visits with subsequent reports to the UN Human Rights Council on good practice and challenges related to human rights and the environment.
Like treaty body recommendations, the UN Special Rapporteur’s assessments and recommendations are not binding on States. There are also some key differences between the special rapporteurs and the treaty bodies. The special rapporteurs are not established directly pursuant to the various human rights conventions, which individual States have joined, but are instead established by the UN Human Rights Council. The special rapporteurs often have a professional standing in their field which makes the reports and recommendations noteworthy. They can be useful as an outside indicator on how a state can best comply with its human rights obligations.
The Special Rapporteur for Human Rights and the Environment visited Norway in September 2019 and published his report in January 2020. The report points out that, although a lot of good work is being done in the environmental area in Norway, there is room for improvement. Among other things, the report includes an overview of facts that are of relevance in the area of climate and the environment, and a number of recommendations on how Norway can improve its safeguarding of environmental and human rights obligations.
The report proposes a number of climate and environmental measures, including addressing air pollution to a greater extent, taking measures to phase out fossil fuel cars and accelerating the process of proposed carbon storage projects. Furthermore, the report proposes measures to safeguard the rights of the Sami people, especially in connection with consultation processes and safeguarding the material conditions necessary for reindeer herding. Finally, the special rapporteur advocates that Norway should end oil exploration and start a gradual phase-out of the fossil fuel industry.37A/HRC/43/53/Add.2. The entire special report with all the recommendations is available on https://undocs.org/A/HRC/43/53/Add.2
What has been consistently pointed out by the UN treaty bodies through their practice is that climate and environmental changes exacerbate the human rights challenges that already exist for the various legal subjects covered by each individual convention and committee. All in all, the fact that the treaty bodies mention climate change so often suggests that this is becoming increasingly important for the interpretation and enforcement of rights in UN human rights conventions. Although the concluding remarks and recommendations in these are state-specific and have limited legal weight, the development quite clearly shows that UN treaty bodies are paying more attention to climate change and its (negative) influence on the realisation of human rights.
This is also seen in other and more concrete statements from the various treaty bodies that have greater legal significance, such as the Human Rights Committee’s statements on the interpretation of the right to life in e.g. Portillo Cáceres v. Paraguay and Teitiota v. New Zealand. There is every reason to expect that this development in the UN human rights system will continue.