by Prof Stefan Kirchner*
In recent weeks, record temperatures and wildfires in Canada have drawn the attention of the public to the impact climate change has on small and remote communities in the global North. What might have been a surprise to many has already been a horrific reality for multiple Arctic communities for some time. Wildfires are no longer restricted to regions that have long been known for the problem, such as Spain, Greece, or California, Australia, nor are they limited to the summer months. Arctic communities suffer from forest fires, environmental degradation and the direct and indirect impacts of climate change. Direct impacts are those which are caused immediately by climate change while indirect impacts are those which happen because of human activities which are facilitated by or respond to climate change. In the global North, the reality of anthropogenic climate change is undeniable. Already today, the Arctic is warming three times as fast as the global average.
Climate Change impact for the people in the Arctic
While many Arctic residents work in similar fields as in other developed nations, traditional livelihoods remain n culturally and economically important in the region. Often, they make significant contributions to local food security. Reindeer herding and salmon fishing not only stand pars pro toto for such activities, but they are also of practical importance for many who live in the Arctic. Reindeer and salmon are not only iconic species of the North, they are also important aspects of regional culture and food security in many parts of the Arctic. Reindeer herding and salmon fishing are essential for the livelihoods and income of many who live in the region. Climate change threatens both reindeer and salmon and the people who depend on them. These livelihoods will be used here as examples of how dramatic the impact of climate change already is in the Arctic and why climate change is also a concern from the perspective of international human rights law.
Unlike Antarctica, the Arctic has been home to a number of indigenous peoples for thousands of years. Today, the four million people who live north of the Arctic Circle, come from many parts of the world. They include indigenous Sámi in northern Europe, Inuit in North America, Nenets in Russia, Norwegians, Swedes, Russians, immigrants from Myanmar and Bangladesh in Finland, immigrants from the Philippines in Greenland, and many more.
A close dependency on nature is shared by everybody who lives in the Arctic, especially in rural regions.
While reindeer herding is mainly practiced by (and in some Arctic countries also legally limited to) indigenous communities, especially fishing is a common activity. Culture, livelihoods, professions, communities, traditions, food security, and human rights all play a role in the exercise of these traditional activities. Climate change is not only impacting the natural environment but also communities and individuals. Already today, the effects of climate change in the Arctic are both directly and indirectly present.
Among the direct effects are those which have an immediate impact on the natural environment of the Arctic, on the people who live there, and on their livelihoods. This includes the melting of permafrost, which leads to the destruction of houses and roads, in particular in Russia and Canada. Given that many Arctic locations already experience housing shortages, towns and villages which are built on permafrost or near eroding coastlines are, particularly at risk. In several Arctic communities, climate change has already led to displacement and the situation is likely to worsen in the years and decades to come. In addition to these social implications concerning housing, livelihoods are directly threatened. Salmon, for example, suffers from increasing water temperatures in Arctic rivers, and in locations where local communities have depended on salmon fishing for generations, a decrease in the number of salmon has become clearly visible.
In several parts of the Arctic, thousands of reindeer have starved to death due to climate change. Reindeer eat lichen and, due to being able to see ultra-violet light, can find lichen under the snow cover. Due to climate change, daytime temperatures in the winter might be above freezing point, causing the uppermost layer of snow to melt. As temperatures go down later in the day, the melted snow freezes, creating a layer of ice on top of the snow. When reindeer, which can dig through the snow, are unable to break the hard layer of ice on top of the snow, their access to the food they need is reduced and, in the worst case, this leads to mass starvation events. Climate change directly causes the traditional way of life to become increasingly impossible in the Arctic. Even though the impact of reindeer herding on the natural environment itself is rather limited, the conditions are changing so quickly that adaptation becomes difficult, if not impossible.
Among the indirect effects of climate change is the widespread perception of the Arctic as opening up for outside users. This is reflected not only in the fact that prior to the COVID-19 pandemic the Arctic had become a popular tourist destination (which has lead not only to more foreign direct investment but also to a booming housing market, including unsustainably high prices, worsening the housing crisis in some urban areas in the Arctic), but also in the governance of the Arctic: in recent years, more and more non-Arctic actors have sought (and, until recently, been granted) observer status with the Arctic Council (here), the key forum for international governance cooperation in the region. The increasing outside interest leads to more economic activities in the Arctic, which in turn increases social and environmental pressures on the region, for example through the increasing demands for land by the extractive and tourism industries, two industries which particularly thrive on the idea that climate change is opening up the Arctic. This idea is based on the idea of the Arctic, in particular, the Arctic ocean is covered by eternal ice and snow. This idea, which is perpetuated on old maps and globes, is no longer correct. The disappearance of Arctic sea ice and increasing temperatures create the impression among many actors outside the Arctic that human activities in the Arctic become easier because of climate change. This perception is no correct. In fact, ship operations in the waters of the Arctic Ocean remain inherently dangerous and the melting of permafrost and flash floods provide serious challenges for infrastructure on land.
The rush for the natural resources of the Arctic is particularly visible in near-coastal areas, for example in the gas fields of Northern Russia where an increasing focus on extractive industries has already significantly affected the natural environment. Because the profits of such economic activities often do not remain in the region, elsewhere, for example in Sweden, protests have formed against mining projects which are seen as destructive and detrimental to the traditional way of life in the region, which is very much dependent on an intact natural environment. Land-use conflicts are hardly new in the region, but there is a real possibility that climate change is increasing the number and frequency of such conflicts.
In addition to direct land uses for extractive industries, land-use conflicts involving traditional livelihoods in the region can also involve activities that might otherwise be seen as neutral or which might even be meant to combat climate change. Examples in this regard include the proposed construction of a cargo railway line connecting the Arctic Ocean near Kirkenes with the existing Finnish railway network. Such plans were recently vetoed by the Regional Council in the Finnish province of Lapland after opposition by the Finnish Sámi Parliament, an elected consultative body representing the indigenous Sámi people (who live in Norway, Sweden, Finland, and Russia) in Finland (here). The idea for the railway line (which would have severely affected reindeer herding in the region) came up due to the expected future importance of the Northern Sea Route, the sea route along Russia’s Northern coast, which provides a significant shortcut between East Asia and Europe, when compared to the currently used maritime trade routes. Responses to climate change can also negatively impact traditional livelihoods.
While further south, for example in Denmark, Germany, and the Netherlands, wind energy installations at sea make a significant contribution to the energy supply, wind energy installations in the European Arctic are often planned in areas that are perceived as sparsely populated by decision-makers but that are often vital for conducting traditional livelihoods, such as reindeer herding.
International Human Rights law and the Artic
Engaging in such traditional livelihoods not only provides an income but also has a cultural dimension that is protected by international human rights law. When practiced by indigenous persons, such activities which are not only economic but also cultural can be protected for example by Article 27 of the International Covenant on Civil and Political Rights. The former European Commission on Human Rights, on the other hand, has so far only indicated a willingness to consider reindeer herding as potentially being protected by the right to private life under Article 8 of the European Convention on Human Rights (here). While existing international human rights instruments have been used for several decades by indigenous litigants, especially in land-use conflicts and also in the context of reindeer herding (here), to defend their rights, climate change leads to new challenges.
Just recently, the courts in Finland have recognized indigenous fishing rights as an aspect of constitutional law (here) and recent jurisprudence in Sweden (here) strengthens the position of reindeer herders with regard to other land users - but the practical value of such legally protected rights decreases significantly if traditional livelihoods cannot be engaged in anymore at all. These challenges are not the result of outdated practices. Arctic communities are not stuck in the past but are modern communities. This includes these traditional livelihoods. In fact, reindeer herding and salmon fishing are modern businesses, using modern-day technology. The problem is not a lack of adaptation to modernity, but a rapid change of circumstances due to human-made climate change.
Because of the anthropogenic nature of climate change, this issue is open to legal solutions. Human rights law has been applied to these traditional livelihoods in the past. Usually, this has involved situations in which the state has taken some action that made traditional livelihoods impossible or more difficult. In so far, the status negativus dimension of human rights was concerned, either directly or (for example when a mining permit is issued for indigenous lands despite a negative impact on the rights of local communities) indirectly.
In the context of climate change, this focus is no longer sufficient. It is no longer enough for the state to refrain from causing harm, but authorities have to take positive action to protect against climate change. In recent months, this has been seen in a number of domestic court decisions, for example in the Netherlands (here) and Germany (here). In the European Arctic, which is largely part of or influenced by the Scandinavian legal tradition (which places less of an emphasis on litigation than the Common Law or even the continental European legal tradition), climate change can lead to a reappraisal of legal tools in the long run. Climate change litigation is likely to play a significantly larger role in the region in the near future.
* Stefan Kirchner, Research Professor of Arctic Law and Head of the Arctic Governance Research Group, Arctic Centre, University of Lapland, Rovaniemi, Finland; Adjunct Professor of Fundamental and Human Rights, Faculty of Law, University of Lapland, Rovaniemi, Finland; member of the bar in Frankfurt am Main, Germany.
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