CLIMATE CHANGE AND HUMAN RIGHTS (ii) Children The Cancun Agreements recognize the need to “fully account” for the adverse effects of climate change on children,192 but do not contain additional instructions on how countries should do this. The Convention on the Rights of the Child outlines a variety of additional requirements that are relevant to the protection of children in the context of climate change. Article 24 is most relevant—it recognizes the “right of the child to the enjoyment of the highest attainable standard of health” and outlines how states should ensure full implementation of the right. For example, states “shall take appropriate measures” to “combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.”193 In addition, the CESCR has directed states to “adopt comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations.”194 The UNFCCC also has an intergenerational focus, with the Parties agreeing that they “should protect the climate system for the benefit of present and future generations of humankind.”195 (iii) Indigenous Peoples OHCHR has recognized that climate change “poses a serious threat to indigenous peoples, who often live in marginal lands and fragile ecosystems which are particularly sensitive to alterations in the physical environment.”196 This threat could potentially undermine the right to self-determination for indigenous peoples, which is recognized in both the ICCPR and the ICESCR,197 as well as the rights outlined in the UN Declaration on the Rights of Indigenous Peoples. The Cancun Agreements explicitly refer to indigenous rights, and call for public participation of indigenous peoples in decisions about forestry and land use projects.198 The UN Declaration on the Rights of Indigenous Peoples contains particularly robust requirements for states to engage and obtain consent from indigenous peoples before undertaking actions that will adversely affect those peoples. For example, it specifies that indigenous peoples shall not be relocated from their lands or territories without “free, prior and informed consent… and after agreement on just and fair compensation and, where possible, with the option of return.”199 It also requires states to provide redress measures in the event that land or property is taken from these people without their consent.200 These provisions are particularly relevant when governments are implementing or authorizing mitigation and adaptation projects that will affect lands or resources owned or used by indigenous peoples. Indeed, the Inter-American Court of Human Rights has decided several cases involving the obligation to protect indigenous rights in the context of projects that affect indigenous lands and resources that would appear applicable in these circumstances.201 In addition, the Declaration recognizes that “Indigenous peoples have the collective right to live in freedom, peace and security” and a corresponding right “not to be subjected to forced assimilation or destruction of their culture.”202 Climate change will likely have a devastating effect on many of the ecosystems that indigenous people rely on for their livelihoods and cultural identity, and as such, the effects of climate change could be construed as a violation of this principle.203 Although it may be difficult to establish causation for the purposes of bringing a successful claim before an international or regional human rights court, it is nonetheless reasonable that major emitters do have an obligation to curtail their emissions so as to avoid the destruction of indigenous cultures. Cancun Agreements (2011), supra note 86, at Section E (preamble). CRC Art. 25(2)(c). CESCR General Comment No. 15, UN Doc. E/C.12/2002/11 (Jan. 20, 2003). UNFCCC Art. 3(1). OHCHR (2009), supra note 71, at p. 68. ICCPR Art. 1, ICESCR Art. 1 See, e.g., Cancun Agreements (2011), supra note 86, at Section E (preamble), p. 72. UN Declaration on the Rights of Indigenous Peoples Art. 10. Id. Arts. 8, 11. See, e.g., Saramaka People v. Surin, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, para. 95(Nov. 28, 2007); Indigenous Cmty. Yakye Axa v. Para., Inter-Am. Ct. H.R. (ser. C), No. 146, para. 143 (June 17, 2005); Maya Indigenous Cmty. Of the Toledo Dist. v. Belize, Case 12.053, Inter-Am. Ct. H.R., Response No. 40/04, OEA/SEr.L/V/II.122 doc. 5 rev., para. 113 (2004); Indigenous Community of Awas Tingni v. Nicaragua, Inter-Am. Ct. H.R. (Ser. C) No. 79, para. 148 (Aug. 31, 2001). 202 Id. Arts. 7 and 8. 203 See Inuit Petition (2005), supra note 7. 192 193 194 195 196 197 198 199 200 201 28 T H E O B L I G AT I O N S O F G O V E R N M E N T S A N D P R I VAT E A C T O R S T O R E S P O N D T O T H E H U M A N R I G H T S I M P L I C AT I O N S O F C L I M AT E C H A N G E