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l
12
CLIMATE MIGRANTS'
RIGHT
TO
ENIOY
THETR
CULTURE
M
arg
oretho
W
eweri
nke-
Sing
h.
I
lntroduction
The
Intergovernmental Panelon
Climate Change(IPCC) first
observedin
1990 that 'migration and resettlement rrray be the most threatening short-term effects ofclimate change
on
human settlements'.l Numerous studies have since confirmed that climate change-
in
combinationwith
multiple
other 'stressors'-will force
an increasing numberof
people âcrossthe
globeto relocate
temporariþ or
per-manentlyto safer habitats.2
The
threatof
forced relocation is particularly urgenrfor
Pacific Small Island Developing States (PSIDS) such asTuvalu, Kiribari,
theSolomon Islands, the
Republic
of
the Marshall Islands, Fiji and Vanuaru,which
arc
alreadylosing
habitableterritory
asa
resultof
climate change. ,{,tthe
sametime,
empirical
evidence suggeststhat a
significantproportion of
peoplefrom
low-lying
PSIDS could be 'trapped'by
worsening climate conditions, decliningiiving standards
andfew
opportunitiesfor
migration or
income-generationfor
adaptation.3
The
lack ofmobility options
only
decreases the chances that culturalheritage could be preserved
in face
of climate change, as well-managed migrationis
widely
recognised as a meansof
enhancing resilience and adaptive capaciryin
island communities.aThe
potential lossof
cultural heritage as a resultof
climate change hassignifi-cant implications
for
the er{oyment
of
human rights. PSIDSfirst
started raising concernsabout
climate change at internationalhuman
rights forumsmore
thana
decade ago.s Andat the
initiative
of
a coalition
of
Small Island DevelopingStates (SIDS)
from
across regions,the
United
Nations Human Rights Council
has recognisedin
e range
of resolutions
that
climate change 'poses an immedi-ate and far-reaching threatto
people and comrnunities around thewodd
and hasimplications
for
the
full
enjoymentof
human
rights'.6The
Conferenceof rhe
Parties (COP)to
the United Nations Framework Convention on Climate Change(UNFCCC)
has simlarly recognisedthe
importanceof
human rights standardsclimate migrants' right to culture 195
in
the
contextof
climate change, startingwith
the
acknowledgmentin
aCop
decision
that 'þ]arties
should,in
all
climate change-related actions,fully
respecthuman
rights'.7Human
rights advocacy
at the
climate negotiations intensifiedin
the run-up
to
the
21stcoP
held
in
paris, Francein
2015,8 andthe
parisAgreement adopted under the
UNFCCC
has become the first multilateral climate agreement to recognise States? human rights obligations.eThe Paris Agreement andits accompanying COP decisionfeature other
remark-able developments: the Paris Agreement includes a standalone article
on
'Loss and Damage', which recognisesthe importance of averring, minimising and addressing loss and damage
asso-ciated
with
the adverse effects of climate change, including extreme lveather events andslow
onset events, andthe role
of sustainable
developmentin
reducing the risk of loss and damage.10The
provision
also 'anchors' anínstitution
establishedby the
Cop
in
201,3 to address lossand
damage,the
'Warsawlntemationa]
Mechanismon
Loss and Damage Associatedwith
Climate ChangefltrIM),
inro
the Paris Agreemenr while makingit subject
to theâuthority
and grídanceofthe
Meeting of the Parties ro rheParis Agreement.ll
And
theCOP
decision accompanying the Agreement requeststhe Executive
Commi*ee
of theWIM
to
estabiish, according to its procedure and mandate, a task force tocomple-ment, draw
upon
thework of and
involve,
as appropriate, existing bodies and expert groups under theConvention
. . . to develop recoÍrmendationsfor integrated approaches to avert, minimize and address displacement related
to
the adverse impactsof
climate changeJ2This builds on the workplan of the
WIM,
which
callsto
'enhance theunderstand-ing of
and expertise onhow
the impacts of climate change are affecting pattersof
migration,
displacement and humanmobiliry;
and the applicationof
suchunder-standing and expertisen.l3
However, the
work of
the
'VZIM has sofar
not been
significantly informed by international human rights law. Thisconrribution
aspiresto demonstrate
the
added valueof a
more
integrated approachto
human rights,climate
change andmigration,
which
could
inform
the
work
of
the future
taskforce
of
the ExecutiveCommittee
of
the
WIM
and thatof
other
internationalbodies and forums mandated to address human rights, climate change or migration.
The link
bewveenclimate
change,the
potential loss ofcultural
heritage andinternational
human
rightslaw
has beeninsuflicientþ
exploredin
literature
onhuman
rights and climate-inducedmigration,
mostof which focuses
on
States'obligations arising
from
the
right to
life
or
the
prohibition of
inhumane
fteat-ment. This focus can be explained by a presumptionin the
literature that there is a'normative gap' in international law relating to the protection of climate migrants,
.fÀÈ|
196
Margaretha Wewerinke-SinghRefugee Conventionta and its 1967 Protocol.ls This presumption has triggered a
quest
for
human rights norms thatmight
offer the refugee-type protectionother-wise provided under international refugee
law,
whereby the rights tolife and
theprohibition of
inhumane treatrnent are natural starting pointsfor
analysis.l6 Thiscontribution
takes a different staftingpoint,
exploring the potential of international human rights law to provide a comprehensive framework of protectionfor actual
andpotential
climate migrants.This framework would
be premisedon a
muchwider
spectrumof
obligationsthan
mereþ
obligationsto
provide
refugee-typeproteccion, ranging
from obligations
to
prevent loss and damage associatedwith
climate change
through
to
obligationsto
help
facilitateor
financecommuniry-based relocation
in a manner
that enables communitiesto preserve their
cultural identities and traditional economies.The
focusof
the analysis ison
theright
of persons belonging tominorities
toe4ioy
their
culture âs protected underArticle
27
of
the
International Covenanton Civil
and PoliticalRights
(ICCPR).
The
ICCPR
is oneof
the mostwidely
ratified
international human rights treaties,with
its
168 State partiesincluding
all States
listedin
Annex
I
to
the
United
Nations
FrameworkConvention
on Climate Change (UNFCCC)17 and dozens of States locatedin
areas where climate changeis
projectedto have serious
negative impactson
humanlife
andliveli-hoods.18
The right to
culture is also arguably enshrinedin customary
internationallaw.1e
The
contribution peruses the Human Rights Committee's(HRC)
interpre-tation
ofArticle
27,wth
particular attentionto
its link with the rights of peoþlesto
selÊdetermination and to freely dispose oftheir
natural wealth and resources as protected under Argicle 1 of theICCPR
andof
the International Covenant onEconomic,
Social and CulturalRights
(ICESCR).2OOn
the basisof
this analysis,the contribution
suggests that a 'norr/:.ative gap' related to theprotection
of
cli-mate migrants doesnot
necessarily exist.It
also setsout
the broader implications of a human rights*based protection framework, referringto
State responsibilityfor
violations of the right to culture and international cooperation on human
mobility.
ll
Cultural rights,
the right of
self-determination
and
climate
change
A
Theright
to culture ín
internationøl
Iøw
The
right
to
enjoy
one'sown
culture is
basedon Article 27 of the Universal
Declaration of Human Rights,
which
provides that everyone has theright to
par-ticipatefr..ly in
the
culturallife of
the
community." Article
27of
the
ICCPR
provides a specific
right of
minorities
to
enjoy their
own
culture,while
Article
15
of the ICESCR
expressesthe
universalright
'to
takepaft
in
cultural
ltfe'.z2Similar provisions are contained
in
other international and regional human rightstreaties.23
Manfred
Nowak
pointsout
that the
right to
culture protected underArticle
27 of
theICCPR
\Mas pu{posefully formulated as an individualright, but
Clímate migrants' right to culture
lg7
in
orderto
'maintain the idea of a group',2a makingit
anindividual right
with
acollective element.zsJames Anaya, a former United Nations Special Rapporteur on
the Rights of Indigenous Peoples, has pointed our rhar
Articie
27in
pncticepro-tects both group and individual':interests
in
cultural integriry.26rhe càmmin..
o1Economic, Social and Cultural
Rights
(CESCR) specifies rhat the beneficiariesof
the right are individuals, but that the right may be exercised either by a person as an individual,
in
associationwith others,
orwithin
a communify or group, as such.27W'ith regard
to
the
term
'minorities',
ManfredNowak nores
th;t
its
mean-ing
partly
overlapswith
the
tenn-
'peoples'in
Arcicle
1 of the
Covenant.2sNonetheless-as the Grand Captain of the
Mikmaq
Indians pointed our in acom-plaint
to
the
HRC
on
behalfof
the
Mikmaq Indians against
Canada-the
rwo terms are to be distinguished.2eIn
both theory and pracricã,th"re
arefour
require-ments understood
to be
implied
by
the term
,minorities,, namely: (1) numericalinferiority to
rhe resr ofthe population;
(2) beingin
anon-dominant
position; (3) having ethnic, religious or linguistic characteristics thar are distinctfrom
thoseof the
overall popularionof
the State; anð, (4) showing,expiicitþ
or
implicitly,
a
sense of solidarity.3o Importantly, the term has been interprered as
including
aliåns;in
other words, the term'minorities'
doesnot
relateto
nationalsof
a State only.utThe
HRC
has gone asfar
asto state that
just
as beneficiaries ofthe
right
,neednot
be nationalsor
citizens, they neednot
be permanent residents' and thus mayinclude 'migrant
workersor
even visitors'.32Nowak also
opinesthat the
rightsenjoyed
by
minorities
'shouldnot
be
deniedto
immigrants,including
migrant workers,who
entered the countryonly
recentþ,.33The
HRC
has further madeit
clear that indigenous communiries mayconsti-tute a
minority
groupwithin
the meaning of the arcicle.3aIt
has upheld rhisview
in
several complaints submittedby representatives
of
indigenous peoples,which
together make
up
mostof
the findings
of
the
Comrnitree underArricle
27.3sIt
could accordingly be argued that, any group of aæual or potential climate migrants
that meets the
definition
of
'minorities'
is entitled ro prorectionof
their
rijnt
toculture
in
their State of origin as well asin
a receiving State, regardless of their tegal statusor
citizenship'In
this
context,it
isimportant
to
notethar
even relatively small island nations are often composedof
a myriadof
culturally distinct groups. For example, the Republic of Vanuatu has about 80 inhabired islands, a populationof about 287,00036 and 138 indigenous languages spoken by distinct cultural
com-munities, each with its
own
traditions and social structures.37When speaking
of
the
right to
culcure as protected underArticle
27, it is the distinct omicro' cultur"sof a nation that presumably attractprotection entitlements for each ofits members.
,{nd insofar
as an entirenation
has a distinct culdure,it
might
be simultaneousþ protected by virrue of parallel instruments and provisions that arenot
confined to minorities, includingArticle 1
of
theICCPR
andICESCR. Moreover,
it
would
be protected where members
of
the nation migrateto
athird
country where theywould
effectively constitute aminority.
For
the pu{poseof
international human rightslaw,
'culture' is
understood as,¡::¡ü
t9t
Margaretha Wewerinke-Singhwhich
includes
onaturaland
man-made environffIents'and
the
'arts,
cnstomsand
traditions through
which
individuals, gtroupsof
individuals andcommuni-ties express
their
humaniry and the meaning they giveto
their
existence'.3s TheHRC
clarifiedin llrnari Lönsman
u Finland3e that underArticle 27,
minontiesor
indigenous groups have the
right to
theprotection
of traditional activities such as hunting, fishing or reindeer husbandry.aOIt noted
the 'spiritual significance' ro rhecomplainants' culfure
of Mount
Riutusvaara (wherethe
activities thar allegedlyinterfered
with
the complainants'right
were carried out), aswell
as the potentialnegâtive effects
of
a
disturbedenvironment
on
the quality
of slaughtered
rein-deer.al At the same time,
it
found thatArticle 27
doesnot
only prorecr traditional meansof
livelihood of
nationalminorities:
the
fact that a minority uses modern technologyto
adaptits
traditional means oflivelihood
to a
modernway
of
iife
does
not
preventit
from invoking
Article
27to protect those means.
The
HRC
reafürmed these findings
in Apirana Mahuil<a u
New Zealand,az whereit
clarified that economic activities may comewithin
the
ambit ofArticle
27 ,if
they
are anessential element of the culture of a community.a3 Accordingly,
it
found
that rheMaori's
right to enJoy
the benefitsof
commercial fishing camewithin
the
scopeof
Arcicle 27.4a This broad conceptionof
culture isimportant
for
communitiesand peoples affected
by climate change:
as Jessie Hohmann notes, the processof
identification of
victimsof
human rights violations comeswith
therisk that
thepotential
victims'
culture is represented as static.asThe
HRC's insistence
that theright to
eryoy one's culture cannot be determined in abstracto but hasto
be placeôin
context46 prevents human rightslitigation or
policy from becoming an obstacleto
innovation
and change,which
would
have potentially detrimental effects onpeople's adaptive capacity.
In
relationto
theright
of selÊdetemrination,it must be noted that
thejurispru-dence
ofthe
HRC
reflects a strong Iink between Articies 1 and27. Thislink
wasfrsr
developed in the case of Lubicon Lal<e Band v Canada,q where the indigenous Lubicon
Lake Band alleged that the permission of energy exploration by private co{porations
in the Band's
territory entailed violationsof
the Band'sright
of self-determination.Although
the
HRC
consideredthe
right
of self*determination
asnor
cognisableunder
the Optional
Protocol,it
proceededto consider
the communication underArtícle
27
instead,asArricle
27 hæ since provided an indirect v/ayto
invoke
rheprovisions
ofArticle
L through the individual complaint procedure, and a significantpart of the jurisprudence of the
HRC
onArticle 27
now reflects rhe simultaneousexpression
ofthe
right ofselÊdetermination. Accordingly, the reasoningofthe
HRC
in
Article27
cæes is instructive for understandinghow
the rights ofpeoples affectedby climate change are protected under intemational law, irrespeciive of whether the
peoples
in question constitute minorities
within the meaning of Amcle
27.B
ClÍmote chonge,
migratíon and
the
right
to culture
The enjoyment of the right to culture is most obviously affected by climate change
=.-rI
Climate migrants, right to culture
lgg
or
land.ae Anthropologists havefound
that this relarionshipis
refleetedin
manyindigenous cultures and languages:
in, for example,
the
cook
IslandsMaori-a
language spoken by inhabitants ofislands that faceinundation-'ernla'
means .land,country, territory,
afterbirth';in
Futuna 'fan:ua'means ,country, land., the peopleof a place'; and in Tonga, 'fonua' means 'isrand, territory, estate, the people of the estate, placenta' and
'fonualoto',
'grave',s0 As Batibasaqa,overton
and Horsleypoint
out,
in several Poþesian
languages 'pro-fanua isboth
the people and theterritory
that nourishes them, as a placenta nourishes a baby,.slAt
the same time, however, Pacific indigenous cultures are characterisedby a
historyof
migration: one exampie is the village of Tabara in norrh-eastern Papua New Guinea,which
has a historyof
fusion,division
andmigration
extendingover
130 kilomerres.s2Traditional knowledge
of
navigation and canoe-building possessedby
ind.igenous peoples across the Pacific further underscores the historical importarrceofmobility
to Pacfic indigenous cultures.s3 Still, many migrants continue to feel a linkagewith
their
indigenous lands, even after havinglived
elsewherefor
considerable periodsof time's4 The loss or uninhabitable character of an indigenous rerritory breaks such
connections and threatens the cultural
identity of
affected peoples. Indeed, some indigenous peoples principalty reject migration as aform of
adaprationro
climare change because they consider the tiesto
their territory
as an essential part oftheir
culture.ss This indicates that despite the fact that migration and
mobility
are some-times inherentin
indigenous culturesn the loss of indigenous peoples'land that is- projected
to occur as a result of climate change still threatens to interferewith
their culturalidentity
and associated human rights.These observations are
confirmed
by
the
submissions madeby
SIDSto
theoffice
ofthe High
commissioner for Human Rights(OHCHR),
which
emphasisethe links befween the right of selÊdetermination and traditional culture. For
exam-ple, the
submission madeby the Repubiic
of
the Marshall Islands(RMD
rejecrsthe
'potential
enforcementof
an
assertion that a low-þing,remote
developing island nation can simply"adapt"
to
the physical lossof
its homeland and nation-hood by removing the populationto
a foreign nation' as operhaps, itself aviolation
of
th.e fundamental humanright
to
nationhood'.56The
submission e4plains thatthe Marshallese are
known for their
strong emphasis on traditional culture,which
values cooperation and sharing.
It
specifically explains thatin accordance
with its
customary system of land tenure, land is'not
viewed as interchangeable real estate,but
instead as a foundationof
national, cultural and personalidentity
and spirit'.s7The submission concludes
that
'[t]he
reclassificationof
the
Marshallese as a dis-placed nationor, looseþ
defined, as"climate
refugees",is
not only undesirable,
but also unacceptable
as anaffront
to
self-determination and national dignity'.5sAlong similar
lines,the
Republic of
the
Maldives'has statedin
a
submission rothe
OHCHR
that
'catastrophic climate change would[.
. .] causethe
denialof
the right
to seiÊdetermination
of
the
Maldives people'.seThe
OHCHR
seemedto
follow
this rationalein its analyticú, study
on
rhe relationship berween climare change and human rights, whereit
suggested that theright
of
self-determinarion2OO
Margaretha Wewerinke-Singhlll
State
responsibility for violations
of the right to culture
'V/hat
are the implications
ofthe
right to culture and the right ofseif-determinationfor actual
and potential 'climate migrants'?To
understand this,we
must analysewhat Judge
Huber
in
Spanßh Zone. of Morocco caJled'the necessary corollaryof
aright',
namely responsibility.ut A closer examinationof
theHRC's
jurisprudencesheds
light
on
the precise requirementsof the right
to
culturewhich, when
vio-lated,
would
resultin
State responsibiliuy.And
an analysis of the territorial scope of States' obligations and the law of State responsibilitywill
shedlight
on thecircum-stances
in which
a Stateor
State might be internationally responsible for violationsof the right
to culture that
are a direct orindirect
result of climate change.A
Støtes'
obligations to
respectand
ensure the
right
to culture
'Whenconsidering States' obügations related
to
the right to culture, a firstpoint
to note is thatArticle 27
is
the onlyright
protected under theICCPR that is nega*
tiveþ
formulatedin
the treâty text.However,
theHRC
has consistentþ held thatArticle
27 imposes positive obligationson
States, based on a systematicexamina-tion
of theteÍns
in
their context andin the
light
of the object andpuqpose of the ICCPR.62 As there is nothingin the
provisionto
the concrary, a systematicinter-pretation of the Covenant requires that the provision be inteqpreted
in accordance
with
Arricle
2
of
the Covenantwhich
setsout an
obligationof
States'to respect
and to ensure to all individuals
within
itsterritory
and subject to itsjurisdiction
therights recognized
in
the Covenant'.63The
HRC
has noted that the positive obli-gationsof
Stateswill
only
be fully dischargedif
States protect individuals againstviolations
by
its agents aswell
as by private persons over whichit
hasjurisdiction,
pointing out
that:There may be circumstances
in
which
a failureto
ensure Covenant rights as requiredby
article 2would
give rise to violationsby
States Parties of thoserights, as
a
resultof
States Parties'permitting
or
failing
to
takeappropri-ate measures
or
to exercise
due diligenceto
prevent, punish, investigateor
redress the harm caused by such acts
by
private persons or entities.64The
positive
obligationsof
Statesunder
the
Covenantinclude an
obligation, spelledout
in
Article 2(2),
to
take
the
necessâry stepsto
adopt suchlaws or
other measures as may be necessary
to
give effectto
the rights recognisedin the
Covenant.65The
Committee has stipulatedthat
thisrequirement'is
unqualified andof
immediate effect'.66The
HRC's
position
thatArticle 27
creates positiveobligations flows
directþ
from this understanding.In
the view of the Committee,Article
27 prescribes 'Positive measures ofprotection
. . .not
only against the actsof the
State party itselfi whetherthrough
its legislative,judicial or
administrative authorities,but
also against the actsof
other persons within the State party' .67The
HRC's
assessmentof
States' compliarrcewith obligations
has focused on both the consequences of States' âcts or omissions and the decision-making processClimate migrants' right to culture 2Ol
through which the alleged violation materialised. Scheinin describes the test applied
by
theHRC
as a 'combined testofparticipation
by the group and sustainabilityof
the indigenous economy'.68 Examples
of
this test âre foundin
the
HRC's
viewson a series
of
cases against Finlandbrought
by members
of
the indigenous Sami people, conceming their traditional reindeer herding culture.6eIn
IJmari Länsman uFinland,To the HRC suggested that the right contains a substantive aspect that States
are obliged to protect against interferences by private actors:
A State may understandably
wishto encourage
developmentor allow
eco-nomic
activityby enterprises.
The
scopeof
irs freedomto do so
isnot
tobe assessed by reference
to
a margin of appreciation, butby
referenceto
theobligations
it
has undertaken underArticle
27.h*icle
27
requtesrhat
amember of a
minoriry
shall not be denied his right to eqjoy his own culrure.Thus, measures whose
impact
amountto a
denialof the
right
will
not
be compatiblewith the obligations
under
Aruícle 27.71This
rationale triggered the questionof
'wherher the impactof
the
quarrying onMount
Riutusvaara is so substantial thatit
does effectively denythe
authors theright to
eqjoytheir
cultural rightsin
that regjon'.7z In considering
this question, theHRC examined the impacts
of quarrying activities that had already taken placeas
weli
as any future activitiesthat
maybe
approvedby
the authorities. In Jouni kinsmanu
Fínland,73 another case concerning reindeer herdingin
Finland"n"**
ing
violauionof
,{.rticle27,
this time forlogging aciviries, the
HRC
reafürmedthat both loggrng that had akeady taken place as
well
as 'suchiogging
as has been approvedfor
the future and which will be spread over a number of years' neededto
be considered. In
relationto
both
past andfuture
activities,the
question waswhether the logging was
'of
such proportions asto deny
the authors theright
to eryoytheir
culture inthat
atea'.74In both
cases theHRC
found no violation
ofArticle
27.In
llmari
Uinsman uFinland
it concluded that
in
the amount that had aTready taken place, the quarryingdid
not constitute a
denialof the
complainants'right
to
enjoytheir own cukure
considering that the complainants andtheir
interests had been considered duringthe proceedings leading up to the granting of the quarrying permit, and rhat based
on
the
evidence,the
reindeerherding
in
rhe area did not appearto
have beenadveneþ affected by the quarrying thath,ad,abeady taken place.Ts
It
also consideredthe compatibility of approved
future
activities based on evidence submitted by the respondent Statewhich showed,
in
the
view of
the
HRC,
compliancewith its
obligations:it
appeared from the evidence that the Stare's authoritieshad'endeav-oured to permit only quarrying
which
would minimise the impact on any reindeerherding
activity
in
SouthernRiutusvaan
andon the
environment'.76More
spe-cificalJy, the respondent State had been able
to
pïove thar reindeer husbandry \Mas protectedby national
legislation, and thatthe
obligations imposed by A*icIe
27had been observed in the permit proceedings.TT
2O2
Margaretha Wewerinke-Singhlong-term
impactsof
the loggrng activities. Consequentþ,the
HRC
concludedthatit could
not find a violationofArticle
27 on this basis alone. However,it
wenton
to consider a range
of
o¡her factors before concluding that there had been noviolation.
First,it
noted that thatthe
authorities hadclearþ
consultedthe
com* muniry towhich
the complainants belonged in drawing up logging plans. Second, icfound
that in the consultation thecommunity
didnot
reâct negativelyto
theseplans.
Third,
the
State had been ableto
prove that the authorities had completedthe process
of
'weighing [up] the complainants' interests and the general economicinterests in the area' during the decision-making process. Fourth, the
HRC
notedthat the national coults had considered specifically whether the proposed activities constituted a denial of rights under
Article 27.
IHavtng considered thesefour
fac-tors, theHRC
concluded thatit
wasnot
in
aposition
to
conclude,on
the
evidence beforeit,
that the
impactof
logging
planswould
be
such asto
amountto
a
denialof
the
authors'rights under
Article
27or that
thefinding of
theCourt
of Appeal afürmedby
the
SupremeCourt,
misinterpretedandlor misapplied
article27
of
the Covenantin the
light
of the facts before it.78In
Apirana Mahuíka v New Zealand, theHRC
clarified itsnotion
of the test ir wasapplying
in
orderto
assess whetheror
not
an allegedvioiation
ofArticle
27had
occurred.
It stated that
the acceptabiliry
of
measures that affector
interferewith
the culturallysig-nificant economic activities of a
minority depends
on whether the membersof the minoriry
in
question have hadthe opportunity to
participarein the
decision-making processin
relationto
these measures and whether they wilicontinue to benefìt from their traditional economy.Te
The case concerned a settlement befween
New
Zealand and the Maoris to reguiateall
Maori
fishing
rights and interests,partly
in
replacementof an
existing fteatybetween the State and the Maori. The complainants had not been part of an
exten-sive process
of
negotiations on the settlement.so However, the facts demonstratedthat
New ZeaJand
had engagedin
a processof
broad consultation before going on to legislate and had paid specific attentionto
the sustainabilicy ofMaori
fishingactivities.
The
Maori were given
accessto
agreat percentage of quotas under the settlement, and thus effective possessionof
fisheries wâs returnedto
them.'With
regard to commercial fìsheries, the settlement established â control system
in which
Maori
shared not only the roleof
safeguarding their interestsin fisheries,
but
alsotheir effective control. As regards non-corrunercial fisheries, the
Crown
obligationsunder the Treaty of \Vaitangi continued, and regulations were made
to
recognise andprovide
for
customaryfood
gathering. Based on these facts,the
HRC
wasunable to
find that the cultural rights
of the complainants had been denied.It
thenwent
onto consider
the participationlimb
of
the test. As with the kinsrnan cases,I
i
I
Climate mígrants, right to
culture
ZO3the
authorities hadproven that
specialartention had been
paid
to
the cultural
significanceof
the traditionala"riviti.,
rf
rh"
";;;-i"i"ants.
The
HRc
held thatby
engagingin the process
of broad consurtatior,¡Ëør.
regisraring, and by paying specific attention to the sustainability
ofMaori
fishing activities, the state had taken
the necessary steps
to
ensure that the settlementandlts enacffnent through
legisla-tion
were compadbiewith
Anicl e 27.s1The
HRC
concluded all the above caseswith
a statement that basicaily warnedthe
respondent Statethat
compliancewith
Article 27
wasa
continuousprocess
involving
systemaric consideratìonof
the impact
of
the
state,s activities and theactivities
of
private actorson
the.eq¡oymenJof
currural rights
by
minorities. In
Ilrnari üinsman
it
even suggestedthat the
very activities that were subject
of the
communication could give rise to a
violation
i¡
difi,'erent circumstances:
it
stated that ifmining
activitiesin the
Angeri area were approved on a large scaleand sig_
nificantly
expandedby those
compani"sto -hi.h'pennits
had been issued, thenthis
might
constiture avioration
or rrr.
complainant,,,ight
underArticre
27.rt
reiterated that'future
economic activities*rrrr,
in
order
to
complywith
Articre27
'
be
carriedout
in a
waYthat the
authors continueto
benefit
from
reindeerhusbandry',82 andthat the state parry was ,under
a
dutytobear this in
mind
when either extending existing contractsor
granting,r.*
orr.r,.E3 Similarþ,
in Apirana
Mahuika the
committee
clarified thatin
the funherimplemenrarionofthe
relevanr Iegislation the statç was obligedto bear
in
mind
that lmeasures affecting theeco-nomic activíties of Maori
must be carried out
in
a
waythat the authors continue toenjoy their culture, and profess and practice their
religion
in
communitywith
othermembers of their group'.84 These
,rì.*,
do not just indicate the broader objective
of compliance
with hurrran
rights obligations,úu,
,r.
also a clear demonstrationof
an application of the principle embodiedin Article
15 ofrhe Inrernarional Law Commission's Arricles on the Responsibitity of States
fb,
I;;;ffi;;i"#i
Acts (i'e. that aviolarion
*ry
"orrrirt of a
colporir.
,.i
o, practice).ss This consori_ dates the interpretation of Arcicl e 27 as givingrise ro a bråad spectrum of positive
and negative obligations, which may inciude ãbügations ro adopr laws and poiicies to prevent deprivations of the right to
culture that would result
from
dangerouscli-mate change' This inteqpretation begs for furrher
examination of the circumstances
in
which
violations of these obrigations may be estabrished.B
LÍnkÍng
odverse effects
of crímate chønge on the en¡oyment
of
the
rÍght
to culture
to wrongful
conduct
'v/here
it
is alleged that theright
to
cuhure isbeing violated
in
connectionwith
the
adverse effecrsof
climate.h.rrg.,
severaln;rrrå;;;;ring
ro
srare responsi_biliry emerge.
At
the ourset,th.
,riort
pressing question is
which
statewould
beresponsible
for alleged
viorations. Thejurisprud.rr.,
discussed above appears ro
be
of little
assistancein
answeringthis
question:as
most
existinghuman
rightsjurisprudence,
it
concernscases
brought by
peoples and individualsagainsr their
,._
2O4
Margaretha Wewerinke-Singhviolations therefore did
not
arisein these
cases.In contrast,
cases of human rightsinfringements
involving
climate change,migration
andmobility
could
irrrràlrre
wrongfrrl conduct
attributableto
multiple
States.Ir
seemsunlikely that
actualor
potential
climate migrantswould
exclusiveþ
seekto
hold their
home
stareaccountable
for
their
grievances,given
that
those statesoften
lack significant
control over the
causesof
climate changeand
havelimited
adaptive
capaciqrto preserve
the
habitability
of islands, while
dependingon
rhe*rr.y
of third
States
for
the
cÎeation of internationalmobility
optionsfor
their nationals.In all
likelihood,
meaningful licigationwould
address stares rhar made significantcon-tributions
to
historical emissionswhle
possessing the meansto provide
affectedstates
with
adaptation finance and their inhabitantswith
migrationoptions.Bc
An
importânt question to address, then, is the territorial scope of States'obliga-tions under international human rights law, including
in parricular
theICCpR. A
first
point to
notein this regard is
that the personal scope of international humanrights
treaties-with the
exceptionof
thosethat protect the rights
of
specific
groups-appears to be unrestricted. Indeed, the texts of human rights treaties
sug-gest that the beneficiaries of human rights obligations include, as per the
UDHR,
'all human beings', save for certain rights
ofpolitical
participation that are confinedto
'citizens'or rights
that specificallyprotect
'peoples'or
'minorities'.lye
should
also note that the
right
of selÊdetermination providedfor in Article
I
of
the lg66Covenants imposes ransnational obligations per se, as ,peoples'm4y comprise the
entire
population of
a State-inwhich
case its protection necessarily depends on .the conduct of other States.sT The
HRC
highlighred thisin
its General Comment onthe Ríght to Sef-Determination of Peoples, stating thar Stares' obligations under
Article
1 exist
'not
only
in
relationto
their own
peoplesbut
vis-à-vis all peopleswhich
have not been able ro exercirse or have been deprived of the possibility oiexercising
their
right
of seH-determination'. s8Article
2(I)
of
the
ICCPR
providesthat
States must respect and ensure rhe rights of individuals'within
itsterritory
and subject to itsjurisdicrion'. The
HRC
has insisted
thar this provision
musrbe
readin
coqiunction
with Anicle 5(1),
which states rhat
Nothing
in
the presentcovenant
maybe
interpreted asimplying for any
state, group or person any
right to
engagein any
activity orperform
any act aimed at the destruction of any of the rights and freedoms recognised hereinor
attheir limitation to
a greater extent than is providedfor
in
the present Covenant.seIt
also emphasises the need to take account of the object and purpose of the rrearyand the
principle
of pacta sunt seruandawhen
considering the scope and natureof
States' obligations.e0 Accordingly,
it
considersthat
theword
'anJ'in
Article
2(1) must be interpreted disjunctively.The
disjunctive readingof
theword
,and, hasI
ll
l
---¡
Climate migrants' right to
culture
2Osclarified
that the
relevant testto
applyfor establishing
jurisdiction is whether
aState has control over a situauion
or
instrumentality that affects the eqjoymentof
Covenant rights.e3In
the context of climate change, an argument could accordingly be made thatby virttre
of Articles27 and
1of
theICCPR,
Stateswith jurisdicrion or
conrrol over private entities whose activities contributeto
climate changeincur
positive obligations to protect the culturally significant economic activities of minoritiesor
peoples that are threatenedby
climate change. These obligationswould
ariseirre-spective
of
the locationof
the minoritiesor
peoples. Srares also presúmably have an obligation to provide these beneficiaries with theopportunity
to participatein
the decision-making process related
to
the activities that couldatr
cttheir rights.
Measures that deprive culturalminorities
or peoples
from
the
ability to
benefitfrom their
traditional economy altogether are outright prohibited, as is clearfrom
theHRC's
rejection of a margin of appreciationto
allow economic activities that deprive beneficiariesof
this
right.
Moreover,
insofar as climate change-inducedmigration is syrnptomatic of a denial of the
right to
enjoy a culture, one or severalStates
might
beunder
anobligation
to
provide
an adequate and effectiverem-edy
to
climate migrants asa
resultof
havingfaled
to
control private
activitiesthat
cause climate change. These obligationswould
arise wherea
State's failureto
address climate change canbe
characterised as'wrongful'
under intemationalhuman rights law.
In
a similar vein, a State'sfälure
to provide relevant assistanceto
States affected by climate change might be characterised as a
wrongful
act thattrig-gers obligations to provide affected peoples
with
an adequate and effective remedy.It
is
sometimes suggestedthat
Article
2(1) wouid
be too. widely inrerprered
if
it
would prohibit
activitiesthat
havethe
cumulative,indirect,
remore andunintended consequence of
impinging
on human rights. However, doctrinal anal-ysis supports the opposite conclusion,nameþ
that a substantive provisionof
theCovenant read in light
of Artícle
2(L) does havethe
capacityro
render someof
these activitiesunlawfirl under
internationallaw.
Firstof
all, there
is no
causalrequirement inherent
in
either international human rightslaw or
the generallaw
of State responsibility.
In
other words, establishing a causallínk
berween a humanrights deprivation
on
the one hand and the âctor
omissionof
a parricular State isnot required to prove the existence
ofa
human rights violation per se. Illustrative isthe European
Courl
of HumanRights (ECtHR)'s
decisionin
TatarC.
Roumanie,where
the
Court higtrlighted
that
'evenin
the absence of
scientific probabiliry abouta
causallink,
the
existenceof
a serious and substantialrisk
to
health andwell-being' of
the applicants imposedon
the State oa positive obligarionto
adopt adequate measures capable of protecting the rights of the applicantsto
respectfor
their private and farnily life and, more generally, to the er{oymenr of a
healtþ
andprotected environment'.ea
It
is clear from thisjudgment,
which reflects the
gen-eral law
of
State responsibilify,es that a failureto
âctin accordance
with
a positiveobligation
will be
attributedto
the State and trigger the Srare's responsibiliryif the
State was boundby
the obligation.
It
wíll not
be necessaryto
link the omission
to a specific organ or
agent.e6 Thus, insteadof
requiring immediacy, directness,."s*f
206
Margaretha Wewerinke-Singhproximity or
intentionin relaúon
to human rights deprivations, human rights lawrenders State conduct potentially unlawful
by virtue
of allowing conduct that putshuman rights at serious risk.
The law
of State responsibility
suggests that severalStates could be held individually responsible for the same or similar
risþ
conduct.eTAs responsibility is established on a case-by-case basis, there is no question of
mul-tiple states
being
simultaneously responsiblewithout
havingregard'to
differingcircumstances. Indeed, precisely those
differing
circumstanceswill
be
consideredin
determining whether or not â stâte's conduct islawlùl in light
of its obligationsto
respect and ensure the rightto
culture.Foreseeability
will
be a key questionin litigation
on the right to culture andcli-mate change.
In
other words,judicial
or quasi-judicial bodieswill
need to considerwhether
the
risk
of
denialof
the
right
is,
to
some extent, a foreseeable conse-quenceof
the
State's conduct.In
the context
of
climate change and migrâtion,foreseeability must be considered
in light of
the overwhelming bodyof
scientific evidence that unambiguousþ links the emission of greenhouse gaseswith
changesin
the Earth's climate system.More specifically,
it
has been recognised since at least L990, when theIPCC
issued its first AssessmentReport,
that anthropogenicclimate change has
the
potentiaito
render island territories uninhabitable.And
as noted above, the same report highlightedmigation and resettlement
aslikely
consequences of climate change.
In
light
of
the principle of effectiveness, it seemsunlikely
that human rights bodieswould
require complainants in climate changecases to prove that the specifìc harm suffered was a foreseeable consequence of the"
specific State's conduct, as imposing such a stringent test could effectiveþ deprive
millions
of
peopleof a remedy
for
potential
violationsof
their right
to culture.
Instead,the foreseeability
of specific
human
rights violationswould again need
to
be
consideredon a case-by-câse basis,
taking
accountof
the State's actualor
assumed knowledge about the causes and consequences
of
climate change at thetime the allegedly
wrongful
conduct occurred.The HRC'sjurisprudence
underAnicle2T
already shows a tendency to considera wide range offactors
in determining
whether a State has breached its obligationsto respect and ensure the right
to culture. As
we have seen above, the Committeetends to coqsider the impact
ofthe
perrrritted activities on the minorities' traditionalculture, details of consuitation processes and decisions of national courts. In
decid-ing cases
involving
alleged violations of theright
to culture resulting
from
climatechange, human rights bodies could also take account ofparallel obligations under
the UNFCCC, the
Kyoto
Protocol and the Paris Agreement, inciuding obJigationsto provide
technology, finance and capacítybuilding
to developing countries
in
accordancewith
theprinciple
of
'common
but
diffetentiated responsibilities and respective capabilities'.e8 Taking accountof
these differentiated obligationswould
lead
to inteqpretations
of States'
human rights obligations that reflect States' his-torical contributionsto climate change
andtheír
capacíty to realisenot
only
therights
of their
own
peoplebut
also rightsof actual
or
potential climate migrantsClimate migrants, right to
culture
2O7is
responsiblefor
violationsof
theright,
asonly
in
certain circumstances a state,s
conduct-or
rather, a state'spractice-relating to climate change
will
be consid-ered wrongfül
in light
of
Arucle 27.In accordance
with the general
law
of state responsibility,
aStatethat has
actu-ally violated its obligations to respe.t and ensure the
right
iá
.rrr"r"äJätrr.,r,
additional obligations ro cease the
wrongfirl
conduct rrrãrr*.
r,rl
*p"*øns
for
injury
causedby-tl.
âct.100 The responsibiliry ofStates
for
human righrs violarionscould be invoked by one or several States against one or several othen, or by
indi-viduals through intemational human rights bodies.1o1
The
role
of
States ¿ffectedby
climate changein
enforcing obligations pertainingto
the
right
to
culture isimportant
considering that states where minoritiesoi
peoples reside presumabiy have aright,
and perhaps an obligation,ro
asseft and defend;"i;;.'il.;,
n*n,
to
culture rather than, asDinah
sherton putsit,
,remainingpassive
*ta,riii^rr.ry
defending itself
for alleged
rights-violating
acts and omissions'.1.2The
iniriativeof
PSIDSto consider
a
Pacificclimate
Treary rhatwould
protecr culcural righrswhile
seeking redressfor
loss and damage associatedwith
climate change could beseen as
away
of defending the rightsof Pacificisland peoples
on the i¡ìtemationalplane.103 Minorities and peoples affected
by climate ,härrg. also have
,
.*.i*
,oì.
to play
in identifying
and developing suitable remediesfor
violations of their rightto cuhure,
as restoration of the enjo¡rment of the right necessarily entails regaining autonomy over their lives and livelíhoods. This requires that these minoriães¿nd 'peoples
have a'seat at the
table'where
responsesto
the adverse affectsof
climatechange and
mobility
andrelocation options are being developed ornegotiated.
lV
Concluding
remarks
The HRC's
jurisprudence
relatedto
the right
to
culture
suggests
that
states,existing obligations
to
ensure actual and potentiaI climate migrants,
right
to
cul-ture
arebroad
and fapreaching.The
implemenrarionof
thesá obligati"onsmight
be
hamperedby lack of
insight
into
their precise
meaning
and
scopein
thecontext
of
climate change.However, this contribution
has demonstratedthar
süates' discretion relating to a range of issues relevant to the
protection
of culturalrights
in
the faceof
climate change andmigration
-
including mitigation
ambi-tion,
theprovision
of
fìnancial, technologic a7 and, capacíqr_iuildirrg supporrro
developing countries and the response
to
climate-inducedmigration
once peopledecide to move
-
islimited
by these existing obligations.More
specifically, stareswith
control
over the actorsor
instrumentalities that cause climate.harrg.
hau.obligations
to
prevent forcedmigration through
climate changemitigation
and
support
fot
adaptation.There
areparallel
obiigarionsro
consult
with
culturalminorities
and peoples about measures that mighc interferewith
their
traditional economies' These requirements exist irrespectiveof
thelocation
or
nationalityof those whose
human rights are affected.The binding
natureof
these require*ments means
that
thelaw of
state responsibilicy*ill
be engagedwhere
oi..
o,
several States fail to meet them. states that arc responsible