The Constraints of UNEP and International Environmental Law to Respond Effectively to the Victims of Climate Change

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The victims of environmental pollution, degradation and change are poorly protected under international law. Apart from specific pollution incidents, the cases where a guilty party can be identified are few. For example, we are all responsible to some extent for climate change when we benefit from fossil fuel consumption or land-use transformations. The situation is not helped by the present economic paradigm, which treats the environment and natural resources as free goods to be exploited for economic benefit, not as capital resources to be managed sustainably. The loss of environmental resources and subsequent damages are considered as externalities.

The United Nations Environment Programme (UNEP), and international environmental law in general, are poorly equipped to deal with victims of climate change or other planetary environmental problems. While there are international conventions on climate change, biodiversity, desertification, toxic chemicals and hazardous wastes, among others, there are hardly any international regimes for liability and compensation apart from oil pollution at sea, and few enforcement mechanisms. Industrialized countries that are at the origin of most international environmental problems are afraid of creating precedents that might open them to a flood of claims and litigation. In addition, the focus of international environmental law has been on environmental protection, and only indirectly on protecting human beings.

Environmental rights are largely not codified. While there are recognized human rights to life, food, water and shelter, the soft law of international declarations has not yet codified a right to clean air, freedom from pollution, access to adequate resources, or contact with and spiritual links to nature, beauty and other intangible dimensions of the environment. The environment itself, and its component species and ecosystems, also have no established rights to protection and sustainable management. The closest international text is the first principle of the Stockholm Declaration adopted at the United Nations Conference on the Human Environment in 1972, which states:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”

The first principle in the Rio Declaration adopted at the United Nations Conference on Environment and Development in 1992 did not add much to this:

“Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”

There are also gaps in international law concerning environmentally displaced persons (Kolmannskog 2008). The international definition of refugees applies those fleeing from persecution by an identifiable person or state, which is not the case in displacement for environmental reasons like climate change. There is also an assumption that a refugee can return home when the threat of persecution ends. On the other hand, those displaced by sea level rise, for instance, will never be able to return to their homes. The structures dealing with political and religious refugees are already overwhelmed, and have no capacity to cope with a new flood of environmentally displaced persons. It is also difficult to distinguish the environmental causes of displacement from other economic and social causes. While environmental change may gradually degrade conditions for existence, the proximate cause of displacement may be an extreme event or natural disaster.

Victims of climate change have no obvious mechanisms of recourse for their loss. We are all both contributors to climate change and potential victims. No one is willing to admit national or collective responsibility; the potential consequences would be too great. If a small island developing state is totally submerged by rising seas resulting from global warming, how can you evaluate the loss of national sovereignty? Do the victims become stateless? Do they have a right to maintain their culture and national autonomy? Can they migrate as whole communities or even nations? The difficulties in the climate change negotiations show the inadequacies of the present system (Dahl 2010). Climate change raises issues of national sovereignty and international responsibility that will challenge the foundations of the present international system of sovereign nation states.

The potential scale of the problem of displacement from climate change is enormous. More than 100 million people live at less than one meter above sea level, and sea level rise is now projected to reach 80 cm to 2 meters in this century. Estimates of total population displacements reach up to 1 billion people (Christian Aid 2007; Kolmannskog 2008). Where is there space and resources to resettle such numbers? Who should pay for the costs of resettlement? Does the polluter pay principle apply? De we keep borders closed and force countries to deal with the problem internally, or do we lower immigration barriers and allow people to move to where there is land, water, resources and possibilities for self-subsistence or employment? We shall probably need a World Migration Organization with powers like the World Trade Organization, able to negotiate a lowering of barriers to the international movement of people, and to allocate displaced persons to the countries best able to receive them. We shall also need new forms of insurance able to share the risks involved in climate change.

For the moment there is tepid interest in these issues of international environmental governance leading up to the United Nations Conference on Sustainable Development in Rio de Janeiro in 2012. There is a lack of political will, a preoccupation with domestic issues and economic difficulties, and a fear of the implications given the projected scale of the problem. Powerful lobbies continue to deny the reality of human-induced climate change.The public is not prepared, and economic stresses leave an opening for populist and xenophobic political movements for whom immigrants are a convenient scapegoat. The issue must therefore be addressed as a human rights challenge at an ethical level (Dahl 2007), emphasizing the ways in which the victims displaced by climate change can be seen as resources bringing new capacities and cultural richness to the receiving communities.

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REFERENCES CITED

Christian Aid. 2007. Human Tide: The Real Migration Crisis. Christian Aid, London, May 2007.

Dahl, Arthur Lyon. 2007. Ethical Challenges of Climate Change. Paper presented at the 11th Conference of the International Environment Forum, Ottawa, Canada, 12 October 2007.

Dahl, Arthur Lyon. 2010. Climate Ethics and the Copenhagen Summit.

Kolmannskog, Vikram Odedra. 2008. Future Floods of Refugees: A comment on climate change, conflict and forced migration. Norwegian Refugee Council, Oslo.

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