Protest, Climate Emergency and International Human Rights – Part I

This blog post has been contributed by Professor Urfan Khaliq, Module Convenor for International Protection of Human Rights.

In recent months we have witnessed massive demonstrations relating to numerous matters in different parts of the World. In Hong Kong there have been demonstrations, some violent others more peaceful, protesting against certain of the proposals of the territory’s government. In Kashmir, there have been demonstrations and uproar further to the decision of the Indian government to revoke the special constitutional status of that territory. Throughout other parts of the world there have been coordinated demonstrations seeking to bring major global metropolises to a grinding halt. Extinction Rebellion, as a movement, seeks to address the proclaimed global climate emergency. Occupying major intersections and transport hubs in key cities in the western World, the movement has sought to stress the urgency of the damage wrought by man-made climate change. This movement has coincided with the rising global profile of Greta Thunberg, the 16 year old Swedish environmental activist, who addressed the UN and who has inspired thousands of school children across the World to be absent from school for a day at a time so as to protest against man-made climate change.

Each of the above examples, in its own way, highlights the connection between rights, their abuse and enforcement. The protests in Hong Kong, for example, relate to opposition to proposed laws which the government wishes to introduce. Hong Kong, as a territory, has a complex history and the current approach of one country (China) and two systems (mainland China, one system; Hong Kong, the other) was always going to come under stress. Under British (colonial) rule until 1997, residents in Hong Kong enjoyed economic and certain political freedoms. China, as a one-party state, since regaining control in 1997 has been reluctant to allow Hong Kong to develop into a fully-fledged democracy. Tensions between existing freedoms in Hong Kong and restrictions imposed by the government in mainland China were never likely to be resolved easily. The break-out of violent demonstrations is, however, difficult to justify in legal terms even if there are arguably few other viable alternatives. This raises an interesting dilemma – to obey the law or to protest against laws (proposed or existing) and break others so as to compel the change desired. The conundrum is an old one. In democratic societies, change can be achieved through the ballot box and the holding of regular secret elections. In more repressive societies, there are few options short of revolution as the so-called Arab Spring uprisings highlighted some years ago.

Compelling domestic political change through widespread protest and uprising is one thing. Regimes can be toppled and governments compelled to change tact. Global climate change, however, raises profoundly different issues. Conceptually it is also distinct and challenges many traditional assumptions. To take a simple example. If an individual is demonstrating peacefully with others or forms an association with others, so as to pursue political outcomes, restrictions on those activities raise human rights concerns. Freedom of expression and freedom of association are well established rights and protected in numerous regional and global human rights treaties. These rights are limited, of course, the rights in question can be derogated from and indeed have limitations built into them. More importantly, perhaps, for these purposes it is easy to identify the right holder and the party which is responsible for the protection of the right – the State.

Climate change, however, presents profound challenges as to how we approach human rights. For quite some years now, man-made climate change has been a scientifically proven fact, even if there are deniers – some perhaps rather better known on a global scale than others. But who is responsible in a legal sense for that change, which human rights are involved and to whom do such rights belong? First, let us take an example of climate change. In the Hindu Kush, Karakorum and Himalaya there approximately 5,000 substantial glaciers. This the one of the largest concentrations of fresh water anywhere in the World. According to climate change scientists, seventy per cent of those glaciers have shrunken substantially in size during the last 20-30 years due to man-made climate change. If that is not staggering enough, then it should be noted those glaciers melt into rivers which in turn help to feed 1.6 billion people; that is one in five of global humanity. Drought, starvation and epidemics affecting such numbers do not bear thinking about. Some armed inter-state conflicts in the future will undeniably be about access to natural resources such as fresh water, as opposed to being over minerals or fossil fuels. With drought and starvation, even if there is no conflict, it is obvious human rights will be endangered but then we come to the paradigm that for a human right to be breached – a State has to bear responsibility. Well, are India, Pakistan or Nepal, for example, responsible for the climate change that will lead to the disastrous consequences in those countries? Are the Maldives, which will be submerged under the sea on current projections within the next 20-30 years, responsible for the displacement of its population who will no longer be able to live there? Are all affected persons right holders and thus victims? These are not questions that can be answered with traditional approaches but answered they must be. In September 2019, five UN Human Rights Treaty Bodies issued a joint statement on human rights and climate change. It is worth noting it is a ‘Joint Statement’ not a General Comment. Legally that is important. It is also key to note which Treaty Bodies were involved: the Committee on the Elimination of Discrimination Against Women; the Committee on Economic, Social and Cultural Rights; the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families; Committee on the Rights of the Child; and the Committee on the Rights of Persons with Disabilities. It is disappointing albeit not surprising that the Human Rights Committee was not involved. But how does the Statement address the key questions asked above? That will be tackled in Part II of this blog.