Ombudsman Institutions addressing complex Human Rights challenges: Climate crises, migration and ageing society
Published December 06, 2024
Ombudsman Institutions addressing complex Human Rights challenges: Climate crises, migration and ageing society
Published December 06, 2024
Speech by the Parliamentary Ombudsman of Malta Judge Emeritus Joseph Zammit McKeon
Friday 6th December 2024, Bled, Slovenia
Introduction
There are Ombuds institutions which have a remit that directly includes investigations on breaches of human rights. There are others (like mine) where the human rights remit is only indirect. Nonetheless, whatever the extent of the remit, watching out for breaches of human rights in the course of investigations is not only reasonable but a must. An Ombuds institution has to keep a proper and careful lookout to human rights challenges that require prompt attention and concerted action.
Climate crises
Climate change is a global challenge. Many including myself believe that over a relatively short span of time it will become a human rights issue. Dogmatic scholars could consider this statement as being farfetched. With all due respect, I disagree.
Human rights investigations are in continuous evolution and require constant attention because the powerful and the abusers continue to remain powerful while the down-trodden continue to be so if not even more.
We witness an absence of global governance. Because of this, the development of common strategies regarding the protection of the basic human rights of people displaced by climate-induced migration are difficult to devise. After all we are out to achieve clear, fair and achievable plans of action rather than academic documentation.
Institutions like ours are there to show through their daily programmes and activities that human rights dogmatism is a matter of the past. Legal provisions require reflection and adjustment. Existing regional and international human rights standards in the context of climate change do not fit into present human rights categories, and progressive interpretation bears the risk of arbitrary and unjust results as well as overstretching the rules of interpretation.
Should therefore be an autonomous human right to climate protection?
The answer is most certainly not a quick one.
A new human right to climate protection would respond to basic human needs and could allow for establishing clear legal standards that have the potential to strengthen human rights protection and secure pre-existing rights.
One month before COP26, the UN Human Rights Council for the first time recognised a clean, healthy, and sustainable environment as a human right, and created a mandate for a Special Rapporteur on the promotion and protection of human rights in the context of climate change.
In the absence of adequate progress in the international climate change negotiations, persons in some countries have taken national legal action. This is hardly surprising, when one considers that on the international level there has been a general failure to accept that basic human interests and needs are already affected or threatened by climate change. Regional human rights systems have yet to be decisive on the relationship between human rights and climate change.
Although domestic litigation may inspire future decisions at the regional and international level, they still reflect specific domestic approaches that are founded on national laws. A case in point was the judgement given on the 24 March 2021 by Germany`s Federal Constitutional Court where the Court found that the German Climate Change Act 2021 was partly unconstitutional because it did not sufficiently mitigate the burden put on the future exercise of freedom rights by the emissions allowed until 2030. The ruling represents a milestone for climate protection in Germany and also deserves attention beyond Germany’s borders. The Constitutional Court set a strong signal for more climate change, making clear that the protection of the climate is a constitutional obligation.
The difficulties lie in the fact that regional and international human rights institutions operate within specific normative framework. Due to its extensive environmental case law (“Guide to the case law of the Court on Environment” – last update 31st August 2023) the European Court of Human Rights (ECtHR) can serve as a sound example in the handling of dogmatic hurdles that arise in the context of climate change. A clear and welcoming direction was given by the Grand Chamber of the ECtHR in its 260 page judgement of the 9 April 2024 in re “Verein Klimaseniorinnen Schweiz and others v. Switzerland “ where the Court found that Switzerland had failed to comply with its positive obligations under the Convention concerning climate change, with criticial gaps in establishing a relevant domestic regulatory framework, including by means of a carbon budget or national CHG emissions limitations. Furthermore the Court was severely critical of the Swiss authorities`s policy failures on climate mitigation targets.
The promotion of a new enforceable human right to climate protection could be a suitable option. It is difficult to imagine a human interest that is not affected by climate change. Since human existence itself is at stake, it is reasonable to look at climate change from a human rights perspective. It would be a relief for marginalised groups, amongst which the aged and migrants. A process of change will necessarily have to evolve within the human rights regime.
Despite that the United Nations Framework Convention on Climate Change speaks of “climate change as a common concern for human kind” there is barely a reference to the negative impact of climate change on persons and their rights. Although the Paris Agreement made specific reference to human rights, there was a lack of a what next approach? Lip service to human rights is not enough. States have to give human rights a legally binding place in the climate debate. States should be held responsible for their failures to mitigate or adapt to the effects of climate change.
The current human rights regime that lists pre-existing rights may not be enough to address and resolve complex questions like the link of causation between climate change and impairment of rights. The emphasis should be laid on the positive rather than the negative obligations of the State. Lack of action on part of the State today may result in future damages when the effects of climate change materialise. It has yet to be seen whether a lower standard of probability would be considered appropriate for climate change cases. In default of the creation of a specific and distinct human rights, one would have to see whether the ECtHR would be inclined to adapt its strict standards.
Jurisdiction is an additional thorny issue where matters relating to the climate crisis are concerned. As rules stand at present, jurisdiction is a necessary prerequisite to hold a State accountable for alleged violations of a person`s rights and freedoms. The extraterritorial application of human rights instruments is admitted only in exceptional cases. Within the European context, a new exception of extraterritorial application of the Convention to the adverse effects of climate change would be required. Climate change should stimulate a reappraisal of extraterritorial jurisdiction to avert restrictive interpretations.
To my mind, all the above considerations are in fact challenges which every Ombuds institution whatever the extent of its remit should ponder on, make proposals and if convincingly acceptable insist on their implementation.
Migration
States have a primary obligation to respect, protect, and fulfil the fundamental human rights of all persons under their jurisdiction or effective control without any discrimination whatsoever.
Migrants (and their families) are the perfect examples of displaced people. As Ombuds institutions, if we truly and tangibly believe that migrants - of whatever nature are - also our concern, and therefore merit our attention and support, then we are duty bound to remind the countries to which we all owe allegiance that States have positive obligations to take preventive and remedial actions not only to uphold the rights of these human beings, but also to address and find solutions for violations and abuse that arise at all stages of migration.
To meet their obligations, States should facilitate migration with dignity and find solutions for the specific needs of migrants, including protection against arbitrary or forced migration.
So far so good as far as desiderata are concerned. Unfortunately we all as Ombuds institutions remain without an answer for important questions.
Why do people migrate at the risk of life or limb?
Could migration be caused by climate change or other environmental factors ?
Could the reasons be discrimination ?
Could the reasons be deprivation of the barest essentials to live ?
All could be the reasons in a way or another. However the adverse effects of climate change are most certainly having their significant toll.
Increasing risks of floods, droughts, storms, and other events undermine livelihoods and increase human suffering and risks to the rights of people in impacted areas. Millions of human beings are forced to move each year within and across borders.
Because they are independent and therefore have an obligation to stand to be counted, Ombuds institutions have to avail themselves of every opportunity, including through their investigations, to remind Governments that they have an obligation to take effective measures to deal with negative climate change issues, including but not only, mitigating any risk of forced migration, in particular where child migrants are concerned, where the sole consideration should be their paramount interest – nothing more and nothing less in the most absolute manner.
Actions and decisions of States should transparent and involve the informed participation and consultation of migrants, or their representatives. Furthermore States are to ensure a credible and verifiable access to justice for all.
Ageing Society
Population aging more so in developed nations is a growing global phenomenon. As people age, the risk increases of having their basic human rights threatened or violated. While the shift towards an older population could be irreversible, policy decisions should be taken to shape a reasonable path forward that makes sense.
Even here Ombuds institutions have an important role to play. They have to insist that a clear distinction has to be drawn between "needs" and "rights". While “needs” may vary depending on multiple factors, “rights” are there to stay as they are fundamental normative rules for all to observe and defend.
Questions arise on how to support rising numbers of older people in the face of health-care and long-term care costs, particularly if equitable and sustainable systems are not in place to distribute resources among age groups.
States should manage the problems of ageing by taking forward-looking measures to innovate their labour markets, and pension and health-care systems to ensure that support for older persons is both adequate and sustainable.
In general, countries with comprehensive social protection systems and universally accessible essential services have been successful at mitigating income inequality and reducing poverty at older ages than those without such systems.
Widespread increased prevalence of precarious forms of work threaten access to adequate pensions and other social protection benefits, putting economic security at risk for large numbers of older persons. Without remedial action, there is a significant risk that standards of living at older ages will become increasingly unequal.
The COVID-19 pandemic exposed existing weaknesses in health care for older persons, especially long-term care, and showed how such weaknesses can aggravate inequalities. Poor quality and underfunded systems of care, insufficient provisions for care at home, low wages and precarious conditions for care workers, and a lack of reliable protocols to prevent COVID-19 transmission within health facilities contributed to a heavy death toll among older persons.
The fact that future generations of older people may be more unequal and economically insecure must be seriously considered. The financial viability of pension systems is an issue of concern, although I have to say that when compared to the enormous cost and waste of arms spending, keeping pension systems going would in comparison seem to be a mere pittance.
While the shift towards older populations is largely irreversible, collective actions and policy decisions shape its path and consequences. Postponing critical measures that allow societies to benefit from and adapt to population ageing would impose high social, economic, fiscal and health-related costs, for both current and future generations.
With appropriate planning, States can manage the challenges and ensure that no one is left behind. After all every person – in every country in the world – should have the right (not just the opportunity) to live a long and healthy life.
