“Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights”.^[1] This is the opening statement of the submission made by the Office of the United Nations High Commissioner for Human Rights to the 21st Conference of the Parties (COP21) to the United Nations Framework Convention on Climate Change in 2015.

The submission, titled “Understanding Human Rights and Climate Change”, makes note of numerous rights affected by climate change, such as the rights to life, food and water, health, housing, and education, as well as the role that states should play in mitigating the impacts of climate change on said rights.^[2]  COP21 ultimately led to the creation of the Paris Agreement, an international treaty placing certain legally binding obligations on states, specifically to submit national climate action plans and engaging in measures to mitigate the effects of global warming.^[3] The treaty is not legally binding in the same way a contract would bind parties at the domestic level, as only certain aspects of the treaty are binding; notably, binding emissions targets and financial commitments are absent.^[4] Nevertheless, the Agreement’s passing indicates a shift in the way states approach climate change. 

While the link between climate change and human rights is certainly not new, a recent ground-breaking decision by the United Nations Human Rights Committee (UNHCR) goes into further detail about the obligations that states owe to individuals negatively affected by climate change under international human rights law.  Specifically, the decision emphasizes the importance of climate change mitigation, and how the failure to mitigate can infringe on human rights.^[5]

This decision helps clarify the obligations of states to mitigate climate change under international human rights law. The decision may also influence the law in Canada, which is guided by numerous sources of international rights law.

The UN Human Rights Committee Weighs In: The Case of the Torres Strait Islanders

The UNHCR recently decided in favour of a group of individuals from the Torres Strait region in Australia, a series of islands that have been left in disarray due to the effects of climate change.^[6] The complainants’ rights under the International Covenant on Civil and Political Rights (ICCPR), specifically their rights to culture (Article 27) and rights to be free from arbitrary interferences with their private lives, families and homes (Article 17), were found to have been violated by the state of Australia.^[7] 

The complainants successfully argued that the state violated their rights by failing to engage in efforts to adapt to and mitigate the effects of climate change in their region such as making upgrades to seawalls and reducing greenhouse gas emissions.^[8] The complainants noted the effects that climate change has had on their ability to conduct important ceremonies, where tidal surges have negatively impacted the complainants’ abilities to exercise their rights to culture.^[9] The complainants also cite decreased sources of food from marine and plant life in the area due to climate change, subsequently making it more difficult for the complainants to pass on their traditional ecological knowledge.^[10]

In reaching its conclusion, the Committee asked the state to provide remedies by way of compensation to the complainants, meaningful consultations with the complainants’ communities to address needs, and implementation of measures to ensure the communities’ “continued safe existence on their respective islands”.^[11]

Notably, some dissenting opinions in the decision argued that the complainants’ rights to life under Article 6 of the ICCPR were also violated.^[12] Though the right to life was found by the majority not to have been violated at this time, citing  mitigation and adaptation measures being undertaken by the state to prevent direct threats to the complainants’ lives, the majority expands on where a lack of climate change mitigation might crystallize into a breach of the right to life.^[13] 

In particular, the majority noted that environmental degradation, especially when severe, can negatively affect an individual’s well-being and lead to a violation of the right to life.^[14] However, to establish an infringement of the right to life, there must be a “real and reasonably foreseeable risk of… physical endangerment or extreme precarity” such that one’s right to life is threatened.^[15]

How Might the Decision Influence Canadian law?

While it remains to be seen how the UNHCR decision could influence climate change mitigation efforts in Canada, there is reason to speculate that the decision’s effects could be positive for Canadian environmental law overall. The Supreme Court has not shied away from using international human rights law as a tool to aid in and shape the interpretation of rights in the Canadian Charter of Rights and Freedoms. For instance, where international human rights law documents have been ratified in Canada, a presumption of conformity exists and aids in interpreting the Charter.^[16] The Court has also stated that it seeks to “ensure consistency between its interpretation of the Charter, on the one hand, and Canada’s international obligations and the relevant principles of international law, on the other”.^[17] For example, in Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)^[18], freedom of religion as provided by section 2(a) of the Charter has been interpreted as being consistent with a similar right in Article 18(1) of the ICCPR.^[19]

So what role might the UNHCR decision play in influencing Canadian environmental law? If similar claims are raised in Canada in the context of the Charter rights, such rights may be interpreted more expansively as being infringed where environmental degradation due to climate change has occurred. This could further motivate states to mitigate greenhouse gas emissions and adapt to the effects of climate change where needed to ensure that human rights are not infringed.

Besides possible impacts on Charter rights, the decision could also change the way that litigation of section 35 of the Constitution Act, 1982 – which is concerned with Aboriginal and treaty rights – evolves in relation to climate change impacts. R v Van der Peet^[20] has already established a test to determine the existence of an Aboriginal right, which must be “integral to the distinctive culture” of the Aboriginal people in question.^[21] The accompanying test in R v Sparrow^[22] was set out to determine whether an Aboriginal right has been infringed and, if so, whether such an infringement could be justified.^[23] As the UNHCR decision turned in part on the right to culture in the ICCPR, it could influence whether future section 35 litigation includes considerations of when government activity – or inactivity – in relation to climate change impacts Aboriginal rights to culture.

It is important to note that the UNHCR decision serves as just one example in a broader shift towards establishing the link between climate change and human rights. In Canada, for instance, there has been an increasing trend toward Charter rights-based climate change litigation.^[24] While the outcomes of these cases remain in the early stages and turn on the distinct ways in which they are framed, the fact that this litigation is occurring reflects the broader “rights turn” happening internationally.

Though it remains to be seen whether this recent UNHCR decision will have any effect on Canada or the domestic law of other states, the decision nevertheless serves as an important addition to international human rights law. The decision indicates that climate change can have a direct impact on an individual’s rights, placing yet more weight on states to fulfill their environmental obligations.