Climate Change and Human Rights: Opportunities to Re-Think our Relationship with the Environment

A speech given at UN@75: Human Rights Day Seminar, hosted by the United Nations Association of New Zealand at Parliament House, 10 December 2020.

Good evening everyone, and my sincere thanks to the UN Association of New Zealand for inviting me to contribute to this International Human Rights Day event.

I have been asked to discuss how we might re-think our relationship with the environment in the contexts of climate change and human rights. As a case study, I’m going to focus on the situation where people are forced to migrate because of climate change impacts.

And I have three key messages. The first is an old but not yet embraced idea, which is that we are in the environment, not separate from it. Secondly, climate change is not “just” an “environment issue”; it is a context in which we live and make decisions. Thirdly, the human rights risks associated with climate change are vast, as exemplified by the impacts on people displaced by climate impacts.

Before getting started, I’d like to highlight that the question of re-thinking our relationship with Nature is not one that every community needs to ask itself. There are communities, especially indigenous communities, whose cultures, cosmologies and ways of life already reflect a healthy relationship with Nature. So, this a question that’s really aimed at what might loosely be described as “Western cultures” or “liberal economies”.

If we were asked to picture “the environment” in our minds, we might think of scenes like sunrise at Milford Sound or of Zealandia and its resident takahē. It is true, of course, that all such things are parts of the environment.

But when we think of those sorts of things as “the environment”, then it is “something else”, “out there”, and we perceive ourselves to be disconnected from it in our everyday lives. And depending on your perspective, this “other world” is something else to be enjoyed and conserved, or bought or taken.

But we Homo sapiens (“highly intelligent primates”, according to the Internet) are in and part of the environment. My talk tonight would be better titled, “Opportunities to Re-Think our Place in the Environment”, rather than our “relationship with it”.

The false separation of humans from nature was popularised in “sustainable development” discourse following the report of World Commission on the Environment in 1987. Even today, more than 30 years later, “sustainable development” is still often presented graphically as three circles side by side: environment, economy and society. Or, at a pinch, as a Venn diagram with a little but of overlapping.

Conceptually, at least, the international community has moved past this mistake. The 2030 Agenda for Sustainable Development, states up front that, “The interlinkages and integrated nature of the Sustainable Development Goals are of crucial importance” [UNGA Res 70/1 (2015), page 2]. The 17 SDGs deal with a wide range of fundamentals: poverty, hunger, health, gender equality, decent work, and climate change, to name a few. Policies and projects on any one of those issues will almost certainly affect others, and so that fact needs to be built into our work.

These interrelationships reflect the fact that the environment is something we live in and are reliant upon, and this is no more obvious than when considering climate change.

People sometimes think of climate change as “just” an environmental issue, as if the impacts of climate change will be as discrete as, for example, a mammal species going extinct. Such extinctions are tragic moral failings, absolutely, but their impacts on humanity are very limited compared to climate change.

Let me now turn to climate change as an environmental problem and then as more than an environmental problem.

For humanity, arguably the most important macro-scale impact of climate change is its effects on the hydrological cycle. Remembering back to school, the hydrological cycle involves water storage systems, such as the polar ice caps, the ocean, ground water and forests. It involves processes of evaporation, condensation and rainfall, and events such as storms and droughts. As global warming heats the ocean and atmosphere, it’s interfering with every component of that hydrological cycle.

For us in the Pacific, the key problems appear to be sea level rise, and more frequent or more intense extremes, especially cyclones, flooding and droughts. Sea-level rise is causing salt water to pollute freshwater supplies and agricultural soils. It’s also drowning marine ecosystems that are important fisheries breeding habitats – mangroves and coral reefs. Adding to those sea level rise problems, as extreme events like cyclones more frequent or larger, there’s less time to recover or more to recover from, before the next event hits, increasing communities’ vulnerability.

All of these sorts of “environmental issues” are impacting on the human rights people of right now: direct mortality and injury from extreme events; compromised health from food and water insecurity, to note some critical ones. And there are mental health challenges associated with disaster events and the chronic uncertainties of looking down the barrel at a climate change future.

There’s are all issues that have already been observed in our region.

The combined impact of all these climate change symptoms is that it can overwhelm people’s resilience and force them into decisions about whether to relocate. And that’s the next suite of human rights risks.

In lifestyle migration, people can end up better off. But climate migration is a form of, what’s known in the literature as, “forced relocation”, which is an entirely different scenario.

How is climate migration forced migration? By and large, people do not want to be forced from their homes. Think about it locally here in New Zealand: People don’t want to be forced from their home to make way for a highway, or because their land becomes more prone to flooding and landslips. They don’t want to walk away; they want the council to undertake works that will make their homes safe. Don’t get me wrong: these people often have legitimate concerns.  

But, adding to those concerns, in Pacific Island countries, we’re also talking about land held under customary title, which has been in the family for many generations, and which has many generations living on it today and many generations buried on it. It’s land that people know how to use and manage sustainably. If they have to move, they’re giving up all of that.

The research into the effects of forced relocation has found wide ranging human rights impacts, and I’m going to give you a fulsome list of examples to paint a clear picture.

In forced relocation,

  1. People lose their land; their base for productive and commercial activity.
  2. When they lose their home, they also lose an important cultural space and traditional setting.
  3. They can have prolonged challenges with unemployment and underemployment.
    1. In turn, that can lead to children, especially girls, being taken out of school to help with running the home.
  4. They can suffer economic, social and psychological marginalisation.
    1. The psychological stresses can add to gender-based and intimate partner violence, and the marginalisation can be experienced more acutely for already marginalised groups, such as people with disabilities and LGBTI people.
  5. For people who rely on subsistence or micro-scale agriculture, food becomes insecure and the skills they had for their own land may not translate to the new land – old expertise becomes redundant and new expertise needs to be developed.
  6. They can lose access to common property that belonged to whole communities. This can include such things as the sea and its natural resources, and public sector infrastructure, such as schools, that reflected their values, their norms, their ways of doing things.
  7. Communities can become fragmented, undermining the informal interpersonal and reciprocal relationships that are relied on for social organisation and social capital that enables social, cultural and economic life.

That’s quite a list of risks. People who are forced to relocate may not experience all of these problems, but it is extremely likely they will experience some or most of them.

And what about the communities into which they move? If the relocating community only has to move 100 metres away from some new coastal hazard, there may not be freehold land they can buy; they may be looking at a neighbouring community’s customary land, and there may be some long running dispute that needs to be solved first.

And there will be a lot of potential for new disputes: competition for land, for jobs, for access to public investment and public services, for market share, and, crucially, for culture.

Similar triggers for dispute will exist where people have to cross international borders.

What would be the view of New Zealanders if, for example, we decided to support people from the region moving here? Would we enable, or even allow them to live traditional lives, if that was what was wanted? The entire territories of some states are at risk of becoming uninhabitable. What if those countries wanted to set up their state here?

As we think about those sorts of questions, it’s worth remembering that Pacific islanders bear no responsibility whatsoever for causing climate change – there is a massive justice issue here – so how do we respond fairly and effectively?

I’m going to have to leave that big question hanging because I don’t have time now to explore it, but the wider issue is that climate change isn’t “just” another environmental issue. It impacts on the human rights of people in our region today, and those impacts are both vast and increasing. In turn, that highlights the environment isn’t separate from us, but a critical context of our lives and the decisions we make.

PhD thesis available here: “Low-Lying States, Climate Change-Induced Relocation, and the Collective Right to Self-Determination”

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Abstract

It is increasingly likely that, due to the impacts of climate change, entire populations of low-lying States – Tuvalu, Kiribati, the Marshall Islands and the Maldives – will need to relocate to other States’ territories. Such en masse relocations would jeopardise these peoples’ national identities and manifestations of their ways of life: cultures, languages, customs, and social, political and economic systems.

Legal writers analysing this topic focus mainly on maritime boundaries and statehood questions. This thesis examines the right to self‑determination. The principal finding is that the peoples of low-lying States are entitled to enjoy self‑determination in climate change-related relocation and that there are practical ways this can occur.

After explaining the factual scenario and the approach to this research, the analysis has four key components. First, it defines the right to self-determination in context of the low-lying States, including entitlements flowing from this collective right. The populations of low‑lying States’ are “peoples” entitled to self-determination, including in relocation. Self‑determination comprises various elements, resembling a bundle of rights. A framework is devised for unpacking this bundle and understanding what self‑determination entails. The framework divides the right into strategic and operational elements. The strategic elements are the right’s objectives of peace and human rights, as well as its classic expressions; external and internal self‑determination. The operational elements seek to secure the right’s objectives through substantive and procedural entitlements. Substantive entitlements include the right of peoples to continuity of their States, to be different, to freely-determined political statuses, and to freely-pursued economic, social and cultural development. Procedural aspects include processes for determining the substantive elements, plus democratic governance, and some degree of autonomy from other political units.

The second major component of this thesis examines potential duty-bearers, and the nature of their duties. Low-lying States are the principal duty-bearers regarding their peoples’ right to self-determination. Third-party States and the United Nations have relevant duties, but these are vague and do not anticipate proactive involvement in supporting low-lying peoples’ endeavours to maintain self-determination ex situ. The duties become clearer for a third-party State that partners in a low-lying people’s relocation, but there are no obligations to become such a partner.

The third part of the legal analysis re-examines the issue of whether statehood can be maintained without inhabitable territory, but in light of the self-determination analysis. There is a presumption of continuity of statehood in international law and it applies to low‑lying States. There is no legal basis to argue that statehood would be terminated in this relocation scenario. The presumption of continuity is bolstered by self‑determination, which gives the peoples of low‑lying States exclusive competence to determine their political statuses. Prior analyses of statehood have focused on the Montevideo Convention indicia. However, these indicia only apply to the creation of States, not termination. Consequently, there is far‑reaching flexibility for extant States to decide how, or whether, the indicia are satisfied.

Finally, options for enabling ex situ self‑determination are presented concerning key questions of legal personality (since statehood is only one option), land and international frameworks. The final section also proposes ways of incorporating self‑determination into the emerging human rights-based approach to climate change adaptation.