The Right Stuff

Yesterday the Universal Declaration of Human Rights celebrated its 61st birthday, I celebrated by attending my second talk in 2 days on the issue of Human Rights and the Environment. Present at both events were Martin Wagner of Earth Justice and Ulrik Halsteen of the UNHCHR. The first event took place in the Klimaforum (dubbed the “alternative conference”) whilst the second was held in the roasting and packed COP15.

Both focused on the Human Rights of indigenous people (mostly because Martin was part of the team who petitioned the US on behalf of the Inuit people). The idea that came out of both talks was similar i.e. climate change is detrimentally affecting the Human Rights of many indigenous peoples (not least the Small Islanders and Inuit people). We were given examples of various rights which will/are being infringed by climate change and these included:-

· Right to Life
· Right to a Means of Subsistence
· Right to Water
· Right to Property and to the Use of Traditional Lands
· Right to Preservation of Health
· Right to be Free from Discrimination
· Right to Culture

It was argued that Human Rights change the plight of indigenous people from a moral issue to a legal obligation and a draft amendment to the negotiating text was distributed. (I am going to get an electronic copy so if you want a version drop me a mail). As a lawyer, of course I am interested in how we can utilise establish laws and legal process to further the fight against the effects of climate change. Additionally, of course, I also feel that Human Rights can provide an additional democratic flavour to the climate change debate, allowing individuals to enter the debate and challenge Governments on their legal imperatives to act to protect their citizens rights. I think this is an extremely powerful but yet underutilised tool and I would like greater recognition (especially by NGOs) to this aspect of the debate/cause.

However that’s not to say that this whole debate doesn’t raise some issues for me.

1. Human Rights law should (of all law) be fundamental and open to all. At the Klimaforma questions were emotive, strong and very personal, however, there was certainly an air of extreme frustration with regard to lack of access and perceived disregard for this important area . The representative of the UNHCHR was considerate in his response but in my eyes found it difficult to explain the legal limitations with regard to litigation and enforcement of these rights (not least in terms of jurisdiction and legal capacity). At the COP 15 the questions were certainly more measured and clinical and focused heavily on legal definitions (i.e. the definitions of climate refugees as opposed to displaced people because of climate change – the difference, the former having a home to go back to). The responses were also far more measured and legal. It is apparent to me that Human Rights law is becoming yet another “exclusive” area where those who have the power are those with the technical expertise in the law. Much as money has the potential to exclude many from engaging in the market process, required legal expertise is becoming dangerously close to excluding those passionate about climate action from the human rights process.
2. My second thought was related to this exclusion; second only perhaps to environmental regulation, Human Rights law is one of the most prolific areas of international treaties. Many rights are outlined in more than 1 treaty or Declaration, there are numerous regional and national HR legislations. This all for rights which, in not only my belief, are inherently enshrined in International Law without the need for any written legislation at all. I couldn’t help but think the introduction of additional text and more brackets to the document, as well as obfuscating the already confusing field of human rights in relation to climate change, would not add to quest for a fair and effective treaty but rather complicate and slow this already protracted process.
3. Which brought me to thinking about this blog’s (or maybe just this blogger’s) favourite topic; the process. Why after 61 years do we still need to explicitly explain in all international treaties that where there are issues of human rights these rights should be protected? Almost immediately after the hot and sweaty HR event, I went straight to the even hotter and more overbearing REDD plus analysis event hosted by conservation.org. I don’t know much about REDD, let alone REDD+ so a lot went over my head, however, one question raised by a gentleman from Nigeria (who represents a localised NGO) did get me thinking; he asked how the conference could adopt a policy mechanism that contained so much potential for the exclusion of poorer nations, especially African nations, because of onerous bureaucratic and capacity building obligations. The Chair’s response was interesting; he stated that of course if the REDD mechanism or any proposed mechanism is excluding any countries, the it is an inappropriate mechanism. This made me think, why does the International Community insist on employing a process which naturally excludes the rights and opinions of women; indigenous groups; youth; the poor; and even the values of basic human rights to the extent that we must forcefully determine that they are included in every treaty, surely this process is an inappropriate process.
   

(also because I like to think that I am a fairly reasoned person I am going to acknowledge at this point that no I can’t think of a better process either and any process (even if somewhat artificially democratic and unlimited) is better than no process at all).