Human Rights Defender Vol 30 Issue 2

HUMAN RIGHTS DEFENDER The road ahead

A MESSAGE FROM THE CONFERENCE ORGANISERS

What if we treated climate change like a disease?

ANDREA DURBACH & SOFIA GRUSKIN

Conference wrap

STUDENT RAPPORTEURS

SPECIAL CONFERENCE ISSUE: HEALTH AND HUMAN RIGHTS IN THE CLIMATE CRISIS CHARTING CHALLENGES AND SOLUTIONS HUMAN RIGHTS DEFENDER | VOLUME 30: ISSUE 2 – DECEMBER 2021

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MANAGING EDITORS:

AUSTRALIAN HUMAN RIGHTS INSTITUTE Website: www.humanrights.unsw.edu.au Email: humanrights@unsw.edu.au Twitter: @humanrightsUNSW LinkedIn: Australian Human Rights Institute Subscribe: humanrights.unsw.edu.au/subscribe

DR ANNI GETHIN is a health social scientist with an interest in domestic violence law reform. She coordinates the Brigid Project, a peer support charity for survivors of domestic violence, runs a research consulting business, and lectures in public health and criminology at Western Sydney University. Anni will commence a PhD at Sydney University law school in 2020; her research will be on legal remedies for victims of domestic violence, and perpetrator accountability.

JOSH GIBSON is a current PhD Candidate and Garth Nettheim Doctoral Teaching Fellow at UNSW. He is a member of the Australian Human Rights Institute and Gilbert + Tobin Centre.

Josh’s research interests include human rights litigation, public interest issues and the role of the courts in the Australian human rights praxis. Josh has experience teaching public law, and legal research at UNSW, and human rights law at Macquarie University.

DR CLAIRE HIGGINS is a Senior Research Fellow at the Andrew and Renata Kaldor Centre for International Refugee Law, at UNSW Sydney. She is the author of ‘Asylum by Boat: origins of Australia’s refugee policy’ (NewSouth, 2017) and was a Fulbright Postdoctoral Scholar at Georgetown University, Washington DC, in 2018.

ANGELA KINTOMINAS is a Scientia PhD Scholar at the University of New South Wales and Teaching Fellow at UNSW Law. As a feminist legal researcher, Angela’s interests are in the intersections of gender, migration and work. She is a Research Associate with the Migrant Worker Justice Initiative and the Social Policy Research Centre.

AMREKHA SHARMA is a senior advisor on Global Engagement at Greenpeace International, where she has led on the design and development of international environmental campaigns for over ten years. She focuses on climate justice and litigation projects. Her background is in Communications and International Security Studies, and she is currently a final year Juris Doctor candidate at the UNSW Faculty of Law and Justice, continuing her interest in climate change and human rights.

ANDY SYMINGTON is a PhD candidate at UNSW Law and an Associate of the Australian Human Rights Institute. He is researching business and human rights, focusing on the extraction of lithium in the high Andean salt flats of South America. In 2018 he was honoured to be the recipient of UNSW’s inaugural Judith Parker Wood Memorial Prize for human rights law. He is an experienced freelance writer and journalist.

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© 2021 Human Rights Defender. The views expressed herein are those of the authors.

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HUMAN RIGHTS DEFENDER | VOLUME 30: ISSUE 2 – DECEMBER 2021

PHOTOS Cover image: Mike Erskine/Unsplash Contents page image: Li-An Lim/Unsplash

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FOREWORD: The Road Ahead Emeritus Professor Andrea Durbach, Professor Sofia Gruskin, Professor Justine Nolan, Dr Janani Shanthosh

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Conference Program CONFERENCE WRAP: Student Rapporteurs

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USC Institute on Inequalities in Global Health William E. Jardell

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Australian Human Rights Institute

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The George Institute for Global Health

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COMMENTARY: What if we Treated Climate Change Like a Disease?

Isabella Satz

Kenneth Yakubu

Emeritus Professor Andrea Durbach and Professor Sofia Gruskin

CONTENTS HUMAN RIGHTS DEFENDER VOLUME 30: ISSUE 2 – DECEMBER 2021

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FOREWORD: THE ROAD AHEAD ANDREA DURBACH

JUSTINE NOLAN

Andrea Durbach is Emeritus Professor and was Director of the Australian Human Rights Centre (now Institute) at UNSW’s Faculty of Law and Justice from 2004-2017.

Justine Nolan is a Professor in the Faculty of Law and Justice at UNSW Sydney and Director of the Australian Human Rights Institute.

SOFIA GRUSKIN Professor Sofia Gruskin directs the University of Southern California’s Institute on Inequalities in Global Health.

Climate change represents a significant threat to the health and human rights of everyone around the world. Climate change is a health and human rights issue and must be recognised as such. The impacts of climate change are particularly severe for populations already suffering discrimination and marginalisation. It directly affects people’s rights – not only to health, but to education, employment, housing, work, water and food to name but a few.

Increasingly human rights tools are being used to address climate-related health issues, but far more is needed. In the past five years, there has been a sharp rise in human rights-based climate change litigation and this year for the first time the Human Rights Council recognised a clean, healthy and sustainable environment as a human right.

This change in approach to action on climate can pave the way for a policy landscape where climate, health and human rights are seen and addressed as symbiotic and not separate challenges to future prosperity. It was with this recognition that the Australian Human Rights Institute, the USC Institute on Inequalities in Global Health and The George Institute for Global Health, Sydney designed the ‘Health and Human Rights in the Climate Crisis: Charting Challenges and Solutions’ conference in October 2021.

JANANI SHANTHOSH Dr Janani Shanthosh leads the Health & Human Rights Program at the Australian Human Rights Institute and is a Research Fellow at The George Institute for Global Health.

of government leadership, especially in addressing vested interests, and the importance of a vocal and organised civil society to apply pressure on governments to act.

Youth leaders like Alexandria Villaseñor spoke about the right of future generations to be left a planet that is not just liveable but thriving. Banok Rind, a Badimaya Yamatji woman from Western Australia, highlighted the importance of having First Nations voices at the policy table so that climate solutions were not only about lowering emissions, but could ensure a just transition that includes Traditional Knowledges to inform healthy, equitable and rights-based outcomes.

These powerful voices, among many others at the conference, all conveyed the same fundamental truth: climate change is here, it is now, and urgent action is needed if we are serious about protecting the health and human rights of current and future generations. Human rights are still inadequately considered but must form the basis of this response, particularly if we are to address the long-term health effects of climate change.

The conference provided a platform for cross-disciplinary learning and exchange across continents, generations and areas of focus, and showed the power of human rights tools to address our shared concern for the health of people and the planet. This included a focus on the link between the increasing burden on under-resourced public health systems, the exploitation of the natural world and altered climatic conditions. The conference brought together more than 500 youth leaders and students, First Nations and Tribal Peoples, academics and experts from 27 countries.

The conference was organised in the leadup to the 26th United Nations Climate Change Conference (COP26), as we saw this as a crucial moment for global leaders to come together and get serious about action on climate change.

Unfortunately, for now it seems, human rights issues were largely ignored. In the final outcome document, the call to fund a response to climate change for developing nations was also significantly watered down. If we are to make a difference and keep the hope of 1.5C alive, it is crucial that individual nations increase their ambitions in addressing current and emerging health and human rights concerns, and in setting their Nationally Determined Contributions to the Paris Agreement ahead of COP27 in 2022.

Attendees heard from Dr Tlaleng Mofokeng, UN Special Rapporteur on the Right to Health, who spoke powerfully about access to health and sustainable environments as a fundamental human right. Former Prime Minister of New Zealand, the Rt Hon. Helen Clark, raised the importance

This issue of the Human Rights Defender features contributions from the three student rapporteurs who attended the conference on behalf of the convening institutes, as well as reflections from some of the academic members of the conference working group.

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HEALTH AND HUMAN RIGHTS IN THE CLIMATE CRISIS: CHARTING CHALLENGES AND SOLUTIONS

CONFERENCE PROGRAM SESSION 5: ADDRESSING ECONOMIC INEQUALITY IN THE FACE OF HEALTH AND CLIMATE EMERGENCIES OPENING SESSION 21 October 9am (AEDT)/20 October 3pm (PDT) SPEAKERS: • The Rt Hon. Helen Clark • Dr Tlaleng Mofokeng

SESSION 2: ADDRESSING THE DISCRIMINATORY IMPACTS OF CLIMATE CHANGE 22 October 10am (AEDT)/21 October 4pm (PDT) SPEAKERS: • Liliana Avila • Mijin Cha • Rajat Khosla • Noelene Nabulivou MODERATOR: • Sofia Gruskin

SESSION 3: EARLY CAREER PARTICIPANT COLLABORATION 26 October 7am (AEDT)/25 October 1pm (PDT)

SESSION 4: CLIMATE AND HEALTH EMERGENCIES – PREPAREDNESS AND MOBILISATION IN AUSTRALIA 26 October 9am (AEDT)/25 October 3pm (PDT) SPEAKERS: • Cheryl Durrant • Donna Green • Brynn O-Brien • Victor Steffensen • Martijn Wilder AM MODERATOR: • Justine Nolan

27 October 9am (AEDT)/26 October 3pm (PDT) SPEAKERS: • Noah Diffenbaugh • Fiona Haigh • Amol Mehra • Paula Vivili MODERATOR: • Josyula K Lakshmi

SESSION 6: CLIMATE CHANGE, PUBLIC HEALTH AND HUMAN RIGHTS 28 October 7am (AEDT)/27 October 1pm (PDT) SPEAKERS: • Flavia Bustreo • Giulia Gasparri • Ashfaq Khalfan • Laurence O. Gostin MODERATOR: • Benjamin Mason Meier

SESSION 7: THE ART OF CLIMATE HEALTH 28 October 11am (AEDT)/27 October 5pm (PDT) SPEAKERS: • Ronda Clarke • Janet Laurence • V (formerly Eve Ensler) MODERATOR: • Andrea Durbach

CLOSING SESSION: DEFENDING OUR FUTURE 29 October 9am (AEDT)/28 October 3pm (PDT) SPEAKERS: • Belyndar Rikimani • Banok Rind • Alexandria Villaseñor MODERATOR: • Tegan Taylor

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USC INSTITUTE ON INEQUALITIES IN GLOBAL HEALTH WILLIAM E. JARDELL Researcher, USC Institute on Inequalities in Global Health. Student rapporteur, ‘Health and Human Rights in the Climate Crisis’.

At the start of this conference, Helen Clark framed the urgency of what we are dealing with perfectly, reminding us that each day, each week, each month, each year, it becomes tougher to address climate change and reverse the path that we are currently on. After all that has been said, it is evident that it is not a matter of if we framed climate change as a disease but whether, when, and will the world take notice.

Climate change is a clear threat to health and to human rights, and should be framed as such and must be addressed with the same sense of urgency we’ve seen in other crisis.

The key question of ‘who’ is most impacted, and who is responsible has been at the forefront of all our conversations. Who does climate change most impact? Whose health is and will be impacted?

Whose rights are and will be impacted? Who is responsible for addressing climate change? Who are the actors that need to be at the table to address the health and well-being of all people especially those who are at most risk? And ultimately who is accountable, who holds governments and corporations to account, and who should be brought to justice for not

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addressing these issues and their impacts on people’s right to health?

Inequalities run rampant when it comes to health, as we continue to see during the COVID-19 pandemic.

Marginalised populations who are too often left behind are being pushed further into vulnerable situations that negatively impact their health. We are already in a period of increased air-borne illness; heat-related injuries; water, food and sanitation insecurity, to name a few; and a period of reduced capacity to cope with the many health and rights threats around the world. Now add climate change.

Dr. Mofokeng brought forward how we cannot talk about a healthy environment without talking about healthy people. Too often voices have been left out of the conversation and leaders like Noelene Nabulivou have reminded us that the lived realities and knowledge of indigenous communities are what need to be the centre of the path forward. These issues are gendered, they are rights issues, and they are complex.

We know already that we can no longer think of human rights and health as just guaranteeing populations access to health services, to care that is of high quality, to information on health risks and technology, to participate in the health continuum, and so on. We must now add a new layer with a focus on populations who are forced to migrate because of climate disasters, and the ability to participate in achieving the highest standard of health as climate change adds significant challenges.

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Photo credit: Misbahul Aulia/Unsplash

During Session 6 of the conference, Giulia Gasparri brought to attention the urgent need for information around human rights, climate change and health to be digestible and less technical so that all can and will benefit from this knowledge. All human rights, described to be critical for health by every speaker, are now more difficult to achieve alongside climate threats. However, this presents a clear opportunity for linkage around the current understanding of rights, of health, and current knowledge of climate change and how these three must now become an interlinked framework to improve health and well-being.

Challenges may seem overwhelming. But it is evident through the discussions we’ve listened to, that solutions are here too, they are available, and they can make a difference. First of all there is activism. And the use of health and human rights impact assessments as discussed by Fiona Haigh – and as we heard from so many speakers – human rights and legal frameworks, accountability mechanisms and most excitingly the ability of art to create cultural and societal change. Janet Laurence eloquently stated that art has the ability to transform, and to help us imagine how change can happen. In the words of Ronda Clarke, it is now our

responsibility to build communities where people think things are possible.

All of this has showcased that the ‘who’ is all of us, for all of us, because climate change impacts health for all of humanity. As we move past the incredible conversations that have taken place during the conference, we must all take the next step of not only identifying solutions to addressing and improving health outcomes, but offering support to one another, and to push as hard as we can while the momentum is there, and for the rest of our lives.

In the words of Greta Thunberg, take us from the “blah blah blah” and into the next phase of utilising the knowledge we have and make lasting change that positively impacts the physical and mental health and well-being of all of humanity, not just those who are easiest to reach. Famously, we say over and over again that the world is on fire, but it is human health and well-being that is burning. What will we do about it?

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AUSTRALIAN HUMAN RIGHTS INSTITUTE ISABELLA SATZ Student, UNSW Law & Justice. Student rapporteur, ‘Health and Human Rights in the Climate Crisis’.

I’d like to share with you my reflections on the conference as a student at UNSW Law and a soon-to-be lawyer, on the role of law – domestic and international – in the way forward on climate change.

domestic law and policy. Core concepts of human rights law and a human rights-based approach, which many of the speakers have described in their own discipline-specific language, offer a vision of a just and fair way forward.

During the conference, the Australian Prime Minister announced a plan for net zero by 2050 and boasted that this plan was not legislated and would not force the hands of Australians. Within this conference, however, so many have pointed directly or indirectly to the role of the law, among a mix of other policy settings and market mechanisms in a plan for climate action. A plan that does not leave the most vulnerable behind or cause more harm than we already have.

Many speakers spoke about equality and nondiscrimination and the disproportionate rights challenges for vulnerable and marginalised groups including First Nations peoples, the Pacific, children, and women and girls, among many other groups. Participation is another core concept which centres these experiences in decisionmaking. Tlaleng Mofokeng also spoke to the interdependence and indivisibility of rights through the example of the right to health and its dependence on the enjoyment of other rights, particularly social, economic and cultural rights. Law is also uniquely well-suited to provide accountability such as providing remedies, including compensation. These core human rights concepts require solutions to the climate crisis that cut across disciplines, sectors and spheres of life and are responsive to intersecting vulnerabilities.

Many speakers have spoken to the need for justice in various forms and with different language: climate justice, a just transition, a transition to justice. Although the law is not always just and in many ways has held us back in climate action, it is also one lever we must pull to achieve climate action, and justice.

At the international level, many speakers have discussed the importance of cross-pollination between human rights law and international environmental and climate law. Flavia Bustreo and others spoke to the recent recognition of the right to a clean, healthy and sustainable environment by the Human Rights Council. Although not legally binding, this makes crystal clear to our decisionmakers that our human rights and our lives depend on the health of the environment. International law creates access to treaty body communications, judicial remedies, creates a standard of political accountability for states and also opportunities for advocates to put the human face of climate change in the face of decisionmakers as Ashfaq Khalfan said. However, challenges with compliance and enforcement demonstrate the importance of implementation at the domestic level.

International human rights law not only describes legal instruments but also a framework, approach or lens to integrate into a plan for climate action in international and

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And finally, in the context of the inaction of leaders and within the constraints of the law, advocates and activists have found creative ways to use the law for the public good and bend it in favour of the rights and climate agenda. Brynn O’Brien spoke to Australasian Centre for Corporate Responsibility’s work where shareholders are putting themselves in the way of business within the constraints of corporations law and shareholder rights.

Climate litigation, including on the basis of human rights, has been an avenue for accountability and applying pressure to states and business, including through the efforts of young climate activists.

I think in the end that law is only one lever and one tool in the toolbox but an important one to tackle the wicked problem and existential threat of our time, and also to ensure quality of life and dignity for all.

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THE GEORGE INSTITUTE FOR GLOBAL HEALTH KENNETH YAKUBU PhD Candidate and Research Assistant, The George Institute for Global Health. Student rapporteur, ‘Health and Human Rights in the Climate Crisis’.

As the conference draws to a close, some of us might be asking the ‘what’s next’ question. I will admit, navigating the issues of climate change can be a daunting task. But it is not an impossible one. We have heard from Helen Clark that “it’s economically, geo-physically, and technologically possible to meet the ambition of the Paris Agreement”. We have been encouraged by V to take all we have heard from this conference and use it to “relocate meaning outward, into a shared process of rehabilitation”. You may have heard the speakers describe the dire consequences of not achieving net zero emissions, but they also shared stories of kinship and connectivity, efforts from the frontlines that are geared towards transformational change.

As academics, civil society organisations and those interested in climate justice, we must keep demanding that state actors take the right decisions in response to the climate crisis, actions that can lead us to a just and rapid transition. We will be criticised for our ideals. Rather than retreat to the safety of those who think and talk like us, we must constantly seek ways to engage the sceptics. It must be about healthy engagement, and dialogue.

In this conference, the speakers have argued brilliantly for the indivisibility of human rights, but now is the time to close ranks. It is time for coalition-building throughout the climate justice and human right movements. As Mijin Cha and Noelene Nabulivou shared, we can do without the silos, we can break out of the ivory towers, roll up our sleeves and work with community groups to “build power locally, and centre directly-impacted stakeholders”. Indeed, we can work with unions to clearly define what a transition to justice looks like – that fine balance between the reduction of emissions and having good quality jobs. We can do more to support the right to “sovereignty and self-

determination” of indigenous communities, promoting what they already know about achieving environmental justice.

Yes, there is more that we can do. We can promote cogovernance models between community groups, business owners and leaders of corporations. And there may be those who say this is not possible, but Tlaleng Mofokeng reminds us that we can look back to “centuries-long examples of sustainable, indigenous practices to model industries after”.

We can encourage our governments and business owners to invest in social protection schemes to mitigate the impact of climate change. Beyond screening for vulnerability, health impact assessment tools can become instruments for promoting collective thinking and action, bringing together health professionals, community groups, and the government. Fiona Haigh has argued brilliantly for how these tools can form a template for integrating human rights principles, promoting a dimension of accountability in the language of rights and responsibilities.

Those of us in the health sector may refer to our lack of legal expertise as a reason for staying out of these engagements.

We may complain of the legality of rights-based approaches to change, but we cannot deny the need to protect our collective rights to a healthy and safe environment, our right to health, and to life. So, there has to be a way of interpreting, and incorporating rights-based approaches into existing health and social care services. If we still argue that this is not our responsibility, we cannot argue our way out of providing leadership for a resilient health system, or reducing the waste we produce. Climate change will increase the demand on health services, so we must lend our voice to efforts aimed at ensuring a sustainable global health workforce. A workforce that is trained, equipped, and motivated to respond to the change in disease and illness patterns that accompany global warming.

We may leave this conference concerned about how much we have not achieved in the fight for climate justice. I hope we also leave inspired by V’s words, that “what seems like a depressive set of circumstances could instead be represented as a joyful assertion of purpose”.

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WHAT IF WE TREATED CLIMATE CHANGE LIKE A DISEASE? ANDREA DURBACH Andrea Durbach is Emeritus Professor and was Director of the Australian Human Rights Centre (now Institute) at UNSW’s Faculty of Law and Justice from 2004-2017.

SOFIA GRUSKIN Professor Sofia Gruskin directs the University of Southern California’s Institute on Inequalities in Global Health.

In November 2019, Ronda Clarke from the Aboriginal Health Council of Western Australia gave evidence1 before a state government inquiry into the impacts of climate change on health. In her closing statement, she posed the question: “[I]f we were to call climate change a disease, would more people take notice?”

A month later, a virus that would result in the deaths of nearly 5 million people was identified in Wuhan, China.

The global response by many governments and public health organisations to COVID-19 was urgent and expansive. Almost overnight, national resources were channelled into scientific research to treat and prevent the virus, and to support stringent public health measures deemed necessary to contain it.

The world clearly demonstrated its capacity to mobilise and act in the face of an unprecedented public health crisis. Although largely unprepared for the pandemic, the global effort to curbs its reach and minimise its harm was marked by speed, scale and collaboration.

Within months of the detection of the virus, vaccines had been developed and trialled; modelling predicted the spread of the disease and the consequent impact on health systems; and restrictions on movement, albeit with devastating and long-term economic and social impacts, proved effective in controlling virus transmission.

Yet these vital interventions have been starkly at odds with the drawn-out, often myopic and increasingly negligent global response to an equally persistent but significantly more harmful public health crisis: climate change.

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The disease analogy seems apt. The risks to health from the climate crisis are well established. In a special report 2 recently released in the lead up to COP26, the World Health Organization declared that climate change “is the single biggest health threat facing humanity”.

For decades, climate changes have been disrupting our weather patterns, contaminating our oceans and waterways, rupturing and destroying our fragile ecosystems, poisoning the air we breathe, the water we drink, and undermining our access to food.

The disintegration of the earth’s natural defence system – the loss of sea ice, forests, wetlands and biodiversity – greatly increases the prospects for pathogens to spread and pandemics to thrive. And yet our failure to universally mitigate the effects of climate change threatens to undermine the last two years of extraordinary progress and scientific advancement in global health.

The symptoms of climate change – extreme temperatures, floods, heatwaves, droughts, fires – are manifestly clear, as are the treatments. What will it take to shake the world from tardiness, indifference and denial in the face of this threat in the same way that countries mobilised in record time to tackle a global pandemic?

As the Australian government dithered3 about whether to adopt a modest but critical emissions reduction target, international and Australian experts and advocates participated in an online conference4 on health and human rights concerns exposed by the climate crisis. At the core of the conference mission, is a recognition of the link

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Photo credit: Callum Shaw/Unsplash

between inequalities, the exploitation of the natural world, altered climatic conditions and the unsustainable burden on public health systems. Protecting our health – our right to life – is an absolute responsibility of our government representatives. In the majority of countries affected by the COVID-19 pandemic, governments, guided by public health experts, demonstrated an historic commitment to this fundamental human right. At stake was risking massive social disruption and economic loss with enduring impacts. But there was also sound recognition that acting swiftly to contain the virus and limit overwhelming hospitalisations and deaths is, in the long term, key to our economic and human revival.

Curiously, in relation to climate change, many of these same governments who acted swiftly and carefully to limit our exposure to a pernicious virus, have continued, in the words5 of UN human rights expert Philip Alston, “to march past every scientific warning and threshold, and what was once considered catastrophic warming, now seems like a best case scenario”.

The most significant lesson to be learnt from the pandemic was the need to act quickly and decisively with scientific endorsement in the face of a global health crisis. In addition, was the need to listen to the voice of impacted communities, and to work across borders in a collaborative fashion. No singular nation or business or community can solve this – we must work together as we know we can.

The net benefit of this approach is that it’s ultimately less costly to prevent than to cure. The disease of COVID-19 is acute; given developments to date, its impact will hopefully diminish over time. The disease of climate change has been a chronic condition; its reach and pace of devastation is escalating. The international collaborations being built around COVID-19 can stand as a bulwark against averting the worst outcomes of the climate crisis. We have all the necessary treatments at our disposal.

1. https://ww2.health.wa.gov.au/~/media/Files/Corporate/general-documents/Climate-Health-WA-Inquiry/PDF/Transcripts/Aboriginal-HealthCouncil-WA.pdf 2. https://news.un.org/en/story/2021/10/1102702 3. https://www.theguardian.com/australia-news/2021/oct/17/eight-years-20-policies-how-australias-leaders-have-fumbled-and-dithered-on-climate 4. https://www.humanrights.unsw.edu.au/conference 5. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID =24735

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HUMAN RIGHTS DEFENDER | VOLUME 30: ISSUE 2 – DECEMBER 2021