When Nations' Decisions Cause or Intensify Environmental Damage In Ways that Hurt Humans, Is There An International Legal Remedy?
By NOAH S. LEAVITT
|Monday, Jan. 03, 2004
In mid-December 2004, the Inuit -- a group of about 150,000 seal-hunting peoples in Canada and Alaska -- announced that they plan to seek an important ruling from the Inter-American Commission on Human Rights. They will ask the Commission to rule that the United States, by contributing substantially to global warming, is threatening their very existence. As part of their campaign, the Inuit will invite the Washington D.C.-based Commission to visit the Arctic Circle to see the devastation being caused by global warming.
In particular, the Inuit will allege that Washington is violating their human rights by repudiating the Kyoto Protocol, and refusing to cut U.S. carbon dioxide emissions, which make up fully 25% of the world's total. The Kyoto Protocol - which will take effect in February, and has been accepted by most industrialized nations -- is the first international agreement to reduce greenhouse gases, and is an addendum to an earlier convention on climate change. The United States refuses to comply with the Protocol because it complains that it will hurt the economy and that it unfairly exempts large developing countries.
In this column, I will place the Inuit's claims in context - explaining how they fit into the Inter-American human rights system. I will also explore a few of the possible spin-offs of the Inuit's campaign. Finally, I will describe how the legal framework underpinning the Inuit's arguments might have implications for thinking about the recent tragic disasters in South Asia.
Reconceptualizing Environmental Violations as Human Rights Violations
Traditionally, international environmental law and international human rights law have been thought of as separate disciplines.
International law has long provided for processes to address disputes among nations concerning the earth's natural systems. Extensive treaty systems define ways for nations to exercise and share control over land, shorelines, the air and other "common" spaces. They also address potentially troublesome environmental calamities, such as widespread air pollution, the movement of garbage and industrial waste, and the possible harms resulting from nuclear power.
Meanwhile, international law also addresses the way nations treat individuals. Lately, international law relating to the issue of treatment of detainees has been much in the news. But one need not be a foreign prisoner to benefit from international human rights law; as I discussed in a prior column, for example, Chicago public housing residents have tried to involve the U.N. in what they claim are human rights violations right here in the United States.
But consider the following scenario: A given nation makes a decision relating to the environment that affects a particular group of persons in such a way as to violate their human rights. Can this be a human rights issue?
Citizens in Louisiana thought so. For the past several years, they have conducted a human rights campaign to draw attention to the fact that petrochemical and oil refineries in their area cause extensive industrial pollution, leading to high cancer rates and other health problems. In particular, they wanted Shell Oil to help relocate residents who lived near plants north of New Orleans. Unable to find adequate recourse in U.S. courts, they availed themselves of the international arena - presenting their case before the UN in Geneva. Finally, they got Congress's attention and Shell's - the company eventually agreed to residents' relocation demands.
The Inuit say that they, too, are suffering as a result of pollution. The U.S. has decided not to comply with the Kyoto protocol; as a result, the Inuit's existence is threatened.
And like the Louisianans, the Inuit say this isn't just a policy issue, or an international environmental issue to be negotiated within and among the relevant nations. In their view, it's an issue of international human rights as well - one that can be solved through international legal bodies, not just through diplomacy or appeals to Congress or the President.
The Inuit's Announcement, and Their Choice of Forum
The Inuit announced their human rights case at the two-week long climate talks in Milan, Italy, a few weeks ago. There, almost 150 countries were working to put the finishing touches to the Kyoto Protocol. The Inuit are far from the only peoples affected by global warming: Delegates from poor nations and regions stretching from the Arctic to small Pacific islands, and even to the Himalayas, protested that they, too, are being harmed by rising temperatures and seas.
Interestingly, the Inuit's announcement received a mixed reception. For instance, the ambassador from Tuvalu -- a tiny 10,000 person nation of wave-pounded islands midway between Australia and Hawaii -- said he regarded legal efforts as the final step in the process - not something to be taken lightly.
Tuvalu had threatened to sue the United States a few years ago in the International Court of Justice, but ultimately withdrew its suit. In contrast, the Inuit have chosen to focus their campaign not on the International Court of Justice or the U.N., but rather on the lesser known but important Inter-American Commission.
Various regions of the world- including Europe, Africa and the Americas - have their own human rights systems that complement the U.N. system, but also at times offer more protection than what the U.N. system provides. These regional groupings can work to enforce international law, and can also develop region-specific law, and structures to adjudicate disputes using this law.
In the Americas, the Organization of American States (OAS) oversees most regional human rights disputes. Within the OAS system are two bodies for the promotion and protection of human rights: The Inter-American Commission and the Inter-American Court of Human Rights.
The Inter-American Commission: Its Powers and Their Limits
The Commission promotes human rights in OAS member states, deals with complaints, and conducts investigations, and prepares country reports. In the course of an investigation, it can request information from governments and, according to its regulations, will consider facts in complaints to be true of they are not countered with other evidence from the accused state party.
The legal standards governing the Commission's reports derive from the American Declaration on the Rights and Duties of Man, and the American Convention on Human Rights. The U.S. - as a member of OAS - is bound by the Declaration. However, it has not ratified the Convention.
As a result of its investigations, the Commission issues reports and recommendations. It has no other enforcement power. However, if it were to declare that the United States has violated the Inuit's rights, that declaration could bolster a future lawsuit - either against the United States in an international court, or against American companies in federal court, possibly under the controversial Alien Tort Claims Act.
In addition, the Inuit hope that their case will intensify political pressure on President Bush. Many governments around the world have already expressed frustration with the United States for failing to sign on to Kyoto; the Inuit's suit may ratchet up that pressure.
They are not the first group to go the Commission with a complaint against the U.S. - nor will they be the last. In 1993, several dozen Washington, D.C. residents filed a human rights petition with the Commission charging the U.S. with violations of the Declaration. And in December 2003, the OAS released a report finding the U.S. in violation of international law for disenfranchising D.C. residents. In addition, another group has sought OAS's ruling on the United States' policies of providing reduced housing assistance for low and very-low income individuals.
The Factual and Legal Basis For the Inuit's Complaint
Factually, the Inuit's case is strong. Extensive evidence supports their claim that their very survival - as well as that of their culture -- depends upon the ice that has existed in the Arctic for thousands of years, and is now disappearing. For instance, the Inuit can no longer depend upon the ice to reach the seals that they use for food. Permafrost melting has destroyed the foundations of their houses, eroded the seashore, and forced them to move inland. Airport runways, roads and harbors are also collapsing.
Moreover, most scientists now agree that the reason the ice is melting is climate change - and that the change has been caused predominantly by human influences. Indeed, the recent Arctic Climate Impact Assessment -- a study of Arctic climate change by 300 scientists for the eight countries with Arctic territory, including the United States -- concluded that "human influences" are now the dominant factor. The report said indigenous people in the Arctic, including Alaska, face significant dangers due to global warming.
At the same time, the evidence shows that the Inuit's health and well-being is suffering as a direct result of U.S. pollution: For example, one study showed an extremely high level of toxins in the breast milk of Inuit mothers.
The legal basis for the Inuit's claim is equally strong. Article I of the American Declaration - to which the US is responsible - guarantees a right to "life, liberty and the security of his person." Article XI guarantees a right to the preservation of health and to well-being. Articles XVIII and XIV provide for rights to the benefits of culture, and to work. All of these rights are arguably being destroyed by the U.S.'s actions. And the U.S., again, is bound, as an OAS member state, by the Declaration.
Are Tsunamis like Global Warming?
The Inuit were able to re-frame global warming as a human right issue because they used facts to show that a nation's decision played a crucial cause role in it. Can the same be said of the tragic horrifying and tsunamis that just hit South Asia?
So far, this issue has been seen as one of domestic international policy - of nations' choice to voluntarily provide domestic and international aid in response to a natural tragedy. But was this tragedy wholly caused by nature? Might it have been preventable by human action that was negligently not taken? Might the losses have been reduced if all warning systems and alarms were fully functional?
Recent stories, such as those in the New York Times, suggest that early warnings systems may have failed -- or, in some areas, may have been almost nonexistent -- and that the relevant governments may not have taken the warnings seriously enough.
The point is not, of course, to shift blame. And, in fact, the outpouring of assistance from around the world has been impressive.
Rather, it is to underline the fact that governments' aid here may well be a matter of human rights and entitlement, not a matter of grace and voluntary aid. When a government decision - such as a decision to pollute despite environmental costs, or to fail to put a state-of-the-art warning system in place despite known risks - causes humans to suffer basic harms, wherever they are, the issue should be one of guaranteed human rights, not just of discretionary policy.