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This blog post was written by Isabelle Berggren, PhD student at Aarhus University, Denmark & visiting researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden from February to May 2022.
The adverse impacts of environmental degradation on human lives and livelihoods is not a new phenomenon. Throughout the history of humankind, people have faced disasters and slow-onset degradation. However, global climate change threatens to significantly increase this phenomenon. The Intergovernmental Panel on Climate Change (IPCC) has predicted an increased frequency and severity of climate-related hazards such as storms, floods, and droughts, as well as long-term processes of sea level rise and ocean desertification in the coming decades, mainly due to anthropogenic greenhouse gas emissions. There are limits to adaptation, and these impacts will severely restrict people’s ability to live, maintain their livelihoods, and reside in certain parts of the world. Indeed, and most notably, the right to life of people living or residing in areas affected by environmental degradation is at risk of being seriously impaired.
Environmental threats to the right to life
The right to life is accepted as the most fundamental norm of human rights law and constitutes a cornerstone of most international and regional human rights instruments. For instance, in Europe, Article 2(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) confer the right to life of everyone falling within the jurisdiction of the contracting states.
Climate change and associated disasters put the effective enjoyment of the right to life at risk in various ways. For instance, disasters triggered by floods and hurricanes might result in human casualties and increased death rates. Furthermore, sea level rise, increasing climatic hazards, and environmental pollution may threaten the access to food, clean water, and other fundamental social and economic rights that are indispensable for the enjoyment of life.
These various threats to life are significant in themselves, and are also closely related to the issue of environmentally related human mobility. Indeed, as noted above, to the extent that environmental degradation is not appropriately mitigated, people’s ability to reside in certain parts of the world will be severely restricted. Some people will move on their own, either within their states or across internationally recognised borders, whereas other people will remain in situ for reasons related to lacking capacities, unwillingness to move, and/or knowledge of future risks. While a range of mechanisms already exists to protect the right to life of people facing displacement, such as displacement prevention through disaster risk reduction and climate change adaptation, evacuation and planned relocation, and non-refoulement, the precise measures states are legally required to adopt in order to comply with their obligations under the ECHR and the ICCPR remains unclear.
Indeed, despite the fundamental importance and threatened nature of the right to life in the context of environmental degradation, there has been little consideration in legal scholarship of the protection afforded of this human rights norm when impaired by environmental change. Overall, it remains to be determined: What is the scope of protection of the right to life in the context of environmental degradation, both in general and in relation to environmentally related human mobility?
Applicability and scope of the right to life in the context of environmental degradation
Departing from the European context, both Article 2(1) of the ECHR and Article 6(1) of the ICCPR confer a positive obligation upon the contracting states to protect the right to life by adopting legislative, preventive, and operational measures. The treaty bodies to the respective instruments have confirmed that this positive obligation applies in the context of environmental degradation where there is a foreseeable risk of life-threatening harm, of which the state was or should have been aware. This raises a number of questions. For instance, how is foreseeability of harm to be understood and assessed in situations of disasters that might be difficult to predict? Furthermore, and in particular, how is the criterion of life-threatening harm to be determined in situations of environmental degradation, which might pose threats to the right to life both directly and indirectly?
In 2019, the Human Rights Committee (HRC) issued new guidance on the right to life under Article 6(1) of the ICCPR, acknowledging that individuals have a right to life ‘with dignity’. Arguably, the scope of protection under Article 6(1) of the ICCPR was thereby expanded as this notion of dignity encompasses protection of certain economic, social, and cultural (ESC) rights, mainly protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is of great relevance in the context of environmental degradation, posing indirect threats to life by impairing the minimum core of rights to food and water, amongst others. However, it also complicates the interpretation of international legal obligations since rights under the ICESCR are subject to progressive realisation while the duty to protect the right to life under Article 6(1) of the ICCPR is of immediate effect.
The same development has not taken place within European human rights law. Instead, the European Court of Human Rights (ECtHR) has aimed to maintain a rigid distinction between the right to life in Article 2(1) of the ECHR and ESC rights. Nevertheless, the ECtHR has recognised certain socio-economic interests necessary for life as relevant components of the right to private life, family life, and home under Article 8(1) of the ECHR in the context of environmental degradation, thus arguably also providing some protection of the right to life ‘with dignity’ in this context. Still, given that Article 8(1) of the ECHR is a qualified right that permits interferences subject to certain conditions, the ECtHR continues to keep ESC rights at a distance from the fundamental and non-derogable nature of the right to life under the Convention.
Despite the uncertainties regarding the relationship between the right to life and ESC rights, the contracting states to the ECHR and the ICCPR must take appropriate and reasonable measures to protect the right to life against environmental threats, where the above-mentioned requirements of applicability are met. For instance, states have duties to assess the risk of environmental harm and to inform their populations of future and immediate life-threatening risks. As noted above, however, it remains to be determined how the scope of protection of the right to life applies to the particular issue of environmentally related human mobility. For instance, the respective treaty bodies to the ECHR and the ICCPR have, to various extents, recognised the duties of states to move people out of harm’s way and to afford protection under the principle of non-refoulement as means to protect the right to life in the context of environmental degradation. However, and regrettably, the jurisprudence of the two treaty bodies falls short of providing a clear legal basis and scope of these measures of protection, thus calling for considered legal analysis and – preferably – further jurisprudence.
The future of protection?
Given that environmental change is a fairly new issue of human rights concern, the current jurisprudence on the right to life under the ECHR and the ICCPR does not clearly answer all the questions identified above and thus fails to stipulate clear boundaries for the protection of the right to life in the context of environmental degradation. Nevertheless, an interpretative analysis guided by the rules of interpretation stipulated in the Vienna Convention on the Law of Treaties (VCLT) can offer some insight into how future claims for protection under the right to life might be assessed by the HRC and the ECtHR. Indeed, analysing and reflecting upon the scope of protection of the right to life in this context is an important first step in strengthening the protection of this fundamental human rights norm.
Still, the analysis of the right to life undoubtedly also opens up for discussions regarding means to enhance protection of this right in the context of environmental degradation. For instance, could a wider interpretation of the right to life ensure a more comprehensive framework of protection, or would the risks and shortcomings of such an approach rather speak for increased protection in non-binding instruments? While no determinate and clear-cut answer can be given to this question, it would indeed benefit from further consideration by human rights lawyers.
This blog post has introduced and reflected upon some legal questions relating to the right to life in the context of environmental degradation and human mobility, relevant for further analysis. They are addressed, analysed, and further discussed in my PhD dissertation, which I am currently working on.