By Sana Farrukh Shaikh[1]
This paper examines the current state of human rights legislation in Pakistan with reference to the effects of climate change. It assumes that the link between climate change and extreme fluctuations in weather pattern as well as earth degradation are scientifically well established. It argues for a rights-based response to the effects of climate change in Pakistan. The conclusion is based on the research of international think tanks and inter-governmental organisations that encourage constitutional rights to be interpreted in a manner as to include the prevention of devastation from such disasters, the largest consequence of which is mass internal displacement.
- INTRODUCTION
Millions of people have been affected by the floods resulting from monsoon rains. This has been a consistent pattern for many years, and damage caused by them has dramatically increased in the last decade or so. The 2014 floods have swept through Pakistan and devastated 1.8 million Pakistani citizens as of 12th September[2]. These natural calamities have displaced millions from their homes. They are commonly referred to as Internally Displaced Persons (IDPs). There is no specific local legislation dealing with IDPs from natural disasters. Similarly Pakistan is not signatory to the 1951 Convention Relating To The Status of Refugees and its additional protocols. They constitute an ill-identified subset of victims under the umbrella of IDPs. In order to understand the need for legislation in this area for these vulnerable people – the number of which will only grow larger and penetrate all class boundaries when the effects of climate change become more palpable than they already are – we must define and segregate the very large number of IDPs in Pakistan today.
The Internal Displacement Monitoring Centre[3] under the Norwegian Refugee Council[4] structures its country profiles according to the UN Guiding Principles on Internal Displacement, the set of international standards concerning IDPs. As their title suggests, these principles do not provide legal definitions. Rather they only attempt to describe the situation many, if yet not all nations, are facing today in the hopes that governments will do what is necessary to provide for their citizens in dire circumstances.
The above referred principles define internally displaced persons are “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border[5].”
1.1 STATISTICAL ANALYSIS – ESTABLISHING THAT THERE IS A PROBLEM:
The IDMC’s report[6] on Pakistan estimates that the vast majority of IDPs have been displaced because of environmental disasters, or rather the inadequate mechanisms that deal with such disasters. The total number of IDPs in Pakistan fluctuates often with the displacement and eventual return or resettlement of individuals. According to the IDMC, an estimated five million individuals in the northwest have been displaced by conflict, sectarian violence and human rights abuses since 2004. With the army operation (Zarb-e-Azb) now being conducted in North Waziristan, over half a million further refugees have been created[7].
These numbers must be kept in mind and compared to the 15 million individuals that were displaced across the country over just three years of monsoon flooding between 2010 and 2012[8].
This figure does not account for those individuals who were made to leave their homes due to droughts or earthquakes, both of which are unfortunately frequent occurrences in the country. For example, the earthquake which struck Kashmir and parts of Northern Pakistan in 2005 displaced 3.5 million individuals[9]. Thus we can conclude that the number of Pakistani nationals who have at some point held IDP status in the last decade exceeds 24 million – with only a small fraction of those displacements being the result of violence.
Comparatively smaller numbers of IDPs are wrought into existence in different areas of Pakistan regularly.
Drought in Sindh has made some areas uninhabitable. Most recently, a report by ActionAid[10] showed that in District Tharparkar, 6,227 people were displaced (out of a total of 31,133 affected by drought[11]). The report also acknowledges the recurring nature of this environmental phenomenon: “Drought-like situation was declared by Govt. in Tharparkar in 1968, 1978, 1985, 1986, 1987, 1995, 1996, 1999, 2001, 2004, 2005 & 2008 which shows that the inhabitants have been facing the calamity time and again for a long time.” It has also predicted severe drought in the future.
Furthermore, in Karachi, rising sea levels have resulted in 100,000 individuals abandoning villages where their ancestors lived for centuries. Water begins to encroach into homes and causes sanitation problems. Additionally, more than one million hectares have been rendered barren due to salinity from salt-water intrusion[12].
1.2. ARE ALL NATURAL DISASTERS UNCONTROLLABLE? IF NOT, WHO IS RESPONSIBLE FOR MANAGING THEM?
Some natural disasters may be not be classified as an uncontrollable phenomenon. For example, landslides and floods can both be managed in the long term using basic planting techniques. Similarly some environmental “disasters” are a recurring problem. If flooding is expected every year and despite this the precautions advocated are not heeded, the devastation cannot be termed as uncontrollable. It is true that the scope of the damage has been enormous and there has been devastating loss of life and livelihood. Ultimately however, it is the responsibility of the state to offer a rights-based response to that problem. Instead states (including Pakistan) have allowed themselves to hang on to the archaic idea that these disasters are freak events unrelated to one another, that perhaps they cannot already estimate the damage expected, that their educated guesses are not a viable basis for reform because they are at the mercy of events they cannot predict. These notions justify the existence of an ad-hoc response to a problem the solution to which would be exponentially more effective had it been established as a rights-based system, with those rights existing in legislation.
- WHAT IS THE GOVERNMENT’S CURRENT RESPONSE PLAN FOR REFUGEES?
In response to IDP influxes, the government and other arms of the State (such as army) work to mitigate the damage and provide safe passage and residence to the afflicted.
The role of the government:
- The government deals with registering the refugees, as documentation is essential in order to organise provision of aid and to keep record of the movement of individuals. The motivations for this are also related to national security – in regions afflicted by terrorist activity, any movement of peoples to other regions of the country, especially as a result of a military operation, must be strictly monitored to ensure that terrorists do not take advantage of safe passage in emergency situations.
- The government allocates funds from the national treasury to ensure the health and safety of IDPs.
- The provincial government either accepts IDPs that wish to enter the state or closes its borders to them.
The role of the army:[13]
- The army has been setting up routes for safe passage of IDPs from uninhabitable areas to safer ones. This involves checking each refugee and appropriately assigning those with security clearance a document proving that they have been cleared to travel and enter other cities. This documentation is given less importance when the migration is unrelated to terrorist activity or army operations to curb terrorist activity.
- The armed forces set up camps for refugees to live in. These are meant to include basic sanitation and medical facilities.
- Along with health care for humans, animal vaccination also takes place to protect the livelihood of livestock farmers.
- WHAT CONSTITUTIONAL RIGHTS HAVE BEEN AWARDED TO PAKISTANI CITIZENS THAT FORM THE BASIS FOR A RIGHTS-BASED SYSTEM?
With regard to environmental issues, constitutional rights have not traditionally been interpreted in a manner to include a marginalised section of society – the least affluent citizens who are living near or below the poverty line – their state exacerbated because they bear the brunt of natural disasters.
The term ‘natural disaster’ is too reductive. It does not encapsulate the many intricately linked problems faced before and after these disasters, with the problems often feeding off one another.
Thus if governing bodies are able to reduce the occurrence of, and mitigate the damage caused by such events, then voters are likely to choose such social service as an important criterion when electing a party to come to power. Under the social contract, the government is directly responsible for this work.
The Constitution of Pakistan 1973[14] contains fundamental human rights that can be interpreted in a manner to preclude environmental problems. These include:
- Right to life under 9 – Security of Person – “No person shall be deprived of life or liberty saves in accordance with law.”
- Right to water under 9, Security of Person,
Art. 14 – Inviolability of dignity of man, etc.− “(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.”
and Art. 155 – “Complaints to interference with water supply”
- Right to food, health and housing under Art 38 – “The State shall provide basic necessities of life, such as food, clothing, housing, education and medical relief.”
- If any section of society is deprived of any amenity the supply of which the government is to ensure, it falls under 25 – Equality of Citizens. –
“(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.”
3.1. WHERE ELSE HAVE BASIC HUMAN RIGHTS BEEN INTERPRETED AS SUCH?
Other jurisdictions have been exploring a rights-based approach to the effects of climate change and environmental degradation. For reference, we can take the Centre for Policy Development’s[15] article[16] which explains the link between human rights and climate change (and its associated problems), and has collected the Australian jurisdiction’s assessment of this approach to policy making.
The Centre for International Environmental Law’s[17] publication “Climate Change and Human Rights: A Primer” includes UN resolutions from as early as 2008 that indicate the importance of a rights-based approach.
Resolution 7/23 on human rights and climate change described the threat of climate change as ‘immediate’ and ‘far reaching’ and requested the OHCHR[18] ‘to conduct a detailed analytical study of the effects of climate change on human rights.
In the aforementioned papers the basic problems of climate change are discussed, as are the international obligations that take these basic human rights further into the realm of environmental law.
Moreover, Pakistan has ratified the International Covenant on Civil and Political Rights (ICCPR), many provisions of which are also read as connecting human rights and environmental rights[19]. Thus an effort must be made to legislate and adjudicate with these rights, Pakistan’s international obligations and its international reputation in mind.
3.2. CAN PAKISTAN’S JUDICIARY ADOPT INTERNATIONAL PRINCIPLES AND HAS IT DONE SO IN RECENT TIMES?
The Supreme Court of Pakistan has in recent times applied principles of UN treaties while adjudicating upon important human rights issues in the country, for example in relation to enforced disappearances/missing persons cases.
Thus one avenue that Pakistan has is to adopt the directives of relevant UN resolutions and become a frontrunner in the development of environmental law in Pakistan, which will go hand in hand with the prevention of human rights abuses at the hands of the state.
In the report of the Judicial Flood Tribunal Inquiry, 2010[20], the blame for the devastation caused by the floods was placed directly on the government, specifically the Punjab Irrigation department. The Minister for Irrigation Mr. Rab Nawaz and his chief engineers Rao Arshad and Abdul Qadir were pointed out in the report, but no action was taken against them. The government is now being questioned by the opposition about the action taken over the 2010 report, or rather lack thereof.
Though the government was found guilty of criminal negligence, no cases were filed against those explicitly pointed out as the culprits. This showed failure on the part of the government to uphold the rights of the citizens. Further infringing citizens’ rights and showing refusal to remedy the human rights abuses they were already guilty of, the technical faults found by the commission were not remedied, and the proposals of some basic laws that could in turn save millions of people were ignored, such as a prohibition on building too close to rivers.[21]
- WHAT STEPS SHOULD THE GOVERNMENT TAKE?
The government needs to recognise that these problems must be dealt with in three distinct phases. These are a) preventative measures/long term sustainable development goals, b) precautionary measures and c) damage control operations. The first of these will be the most difficult to direct funding to because of lack of immediacy in a country with so many political and security issues.
- Preventative measures must include a weaning off of natural resources for the state of Pakistan. For a country with a massive sun-belt and opportunities for wind-generated power, reducing reliance on fossil fuels would at the very least improve air quality and minimise the consumption of hydrocarbons. Reliance on alternative energy will reduce the emissions that cause climate change. Even though Pakistan has a world share of 0.5% of global greenhouse gas production, switching to renewable energy will result in savings in the long run which can be redirected to implementing laws that fight environmental human rights abuses. As climate change is at the root of the increased frequency of the natural calamities that cause mass internal displacement, Pakistan needs to participate fully in a net reduction in global emissions, as well as establish itself as a country aware of its ecological impact that in turn only torments its own citizens. In this case we are dealing with a massive change in national policy in many different areas over decades.
These include investment in safe public transport which runs on clean energy (which should reduce cost) and sustainable agricultural practices.
Changes in the education sector should include providing students with the opportunity to become professionals in environmental studies, environmental engineering or consultation which includes urban planning, impact assessment and feasibility studies.
A market must also be created for this kind of expertise. This can be achieved through strictly implementing corporate social responsibility policies in all companies. In this way, they can become compliant with what should be Pakistan’s eventual goal, to become a green city not contributing to climate change, and not responsible for the frequent natural disasters that will keep coming unless every state aspires to go green.
- Precautionary measures include (i) Increased precision and efficiency of urban planning, (ii) introduction of new specialised legislation and (iii) regulation and implementation of (i) and (ii).
Pakistan already has the Pakistan Environment Protection Act 1997 (PEPA). However, legislation is needed in each province for safer building practices and regulation of economic activity. This needs to include better irrigation in cities, bans on building too close to rivers, strict limits on logging, mandated reforestation in hilly areas or areas prone to floods/landslides and an aim to raise the percentage of forest-covered land in Pakistan (to create carbon sinks, which further achieves the objectives of long-term sustainable development).
With specific reference to the introduction of specialised legislation, Pakistan needs to build on the principles developed in Shehla Zia v. Wapda[22]. Here the judiciary did accept that deforestation, electro-magnetic fields and environmental pollution constitute human rights abuses. These principles have been discussed considerably within this judgement, taking care to balance national economic objectives with the welfare of the people, with the latter being adequately catered to.
- For obvious reasons, damage control is currently the area receiving most attention from the government. Pakistan does important work in this regard under the National Disaster Management Authority (NDMA[23]). Moreover, government agencies work with many international organisations and especially the UNHRC in provision of temporary shelter for the internally displaced. However, a legislative footing for emergency protocol would improve conditions immensely.
A very important preliminary issue where there is need for consensus and clarity within the federal and provincial governments is when and in what circumstances their borders will be open for IDPs from other provinces. There must be a national policy on this and cooperation from the provinces. Only after this is sorted can plans to improve the state of IDP camps be truly successful due to a better distribution of individuals, especially to provinces that are prepared for them.
Once the first hurdle is passed, perhaps the most important issue with reference to the kind of lives IDP’s lead is education for children, who constitute much of the population at these camps. Article 25-A of the Constitution of Pakistan[24] is the right to education, and non-compliance with this is another manner in which IDPs are treated as second-class citizens. If they were not already lost in the cycle of poverty, they will be if future breadwinners are not being educated.
Detailed protocol must be developed. Even going as far as creating a definitive list of rights of the IDP might become necessary to ensure that non-compliance by the government results in action against relevant agencies. An avenue for legal representation for the IDP’s must be opened.
Besides enacting legislation, the Pakistani government, especially with reference to floods, must come to an agreement with the Indian government to minimise the devastation. The rivers that flow through Pakistan originate from Indian-held Kashmir. Currently the Indian Central Water Commission (CWC) does not operate in Indian-held Kashmir.[25] Thus without any legislation mandating the CWC to monitor water levels and issue flood warnings from the area, the scale of this problem cannot be minimised.
- CONCLUSION:
The environmental phenomena behind the increased frequency and strength of natural disasters and increasingly erratic weather patterns need to be brought into the narrative of national policy development. Encouraging innovation in the field of environmental studies as well as encouraging other disciplines to include environmental ethics into their programmes can result in a major shift in the rhetoric on climate change in Pakistan.
Because of lack of awareness and specialised education the link between climate change and the very real, very visible human rights issues it results in is missing in the thought process of today and tomorrow’s employees, business owners and government officials.
Once this is remedied through the steps highlighted in Section 4, over time Pakistan will achieve sustainable growth. The right legislation must be enacted to counter each stage of the problem. To prevent disasters, we must deal with displacement, and bring human rights protection to a level where IDPs can eventually relocate or return to their homes and live respectable lives. If these objectives are achieved, Pakistani citizens will no longer face the threat they currently face, which is to risk becoming second-class citizens if they are unlucky enough to bear the brunt of a natural calamity.
The government must recognise its duty to uphold the constitution especially in dire situations. These fundamental rights cannot be ignored or suspended in times of chaos. If the government is unable to deal with that chaos, it loses its legitimacy. Furthermore, the IDPs must be aware that they do not lose their rights once IDP status is given to them. They must have legal avenues and must be able to challenge the government departments that fail them. The judiciary has taken steps in the right direction but reform and redrafting can go much further. The organs of this state need not wait for another wave of floods and landslides to determine whether concrete change is necessary.
[1] The author is a second year student pursuing her Law degree from the University of London External Programmes.
[2] BBC “Alert in Multan as Pakistan flood river peaks.
[3] Established in 1998 at the request of the Interagency Standing Committee on humanitarian assistance, the unique service the IDMC provides has been recognized their work been and reiterated in annual UN General Assembly resolutions.
[4] The NRC was established in 1946 under the name Aid to Europe, to assist refugees in Europe after the Second World War. Today NRC is organised as an independent, private foundation which works with the UN and humanitarian agencies worldwide. It has over 4000 employees operating in over 20 countries.
[5] UN Guiding Principles on Internal Displacement, Introduction, para. 2.
[6] IDMC Overview Pakistan 12 June 2013 NORTH-WEST PAKISTAN Massive new displacement and falling returns require rights-based response.
[7] Pak Tribune 7th July 2014 – “A total of 572,529 people, belonging to 44,633 families have been registered as internally displaced persons (IDPs) in the aftermath of operation Zarb-e-Azb, which started on June 15.”
[8] IDMC Overview Pakistan 12 June 2013 NORTH-WEST PAKISTAN Massive new displacement and falling returns require rights-based response, para. 2.
[9] “Construction of Earthquake Resistant Buildings and Infrastructure Implementing Seismic Design and Building Code in Northern Pakistan 2005 Earthquake Affected Area”
[10] Founded in 1972, ActionAid is an international non-governmental organization the primary aim of which is to fight poverty and injustice globally.
[11] Needs Assessment Umerkot and Tharparkar “ACTIONAID – NEEDS ASSESSMENT DROUGHT IN SINDH” Published 12th March, 2014.
[12]Al Jazeera: Asia http://www.aljazeera.com/video/asia/2014/06/rising-sea-levels-force-pakistanis-from-homes-201462883522471298.html
[13] For reference, see www.ispr.gov.pk, “Pakistan Army’s Flood Relief Efforts”.
[14] The Constitution of Pakistan 1973, Articles 9, 14, 25, 38, 155.
[15] Established in 2007, Centre for Policy Development (CPD) is an independent, nonpartisan Australian think tank.
[16] “Climate Change and Human Rights” – John Von Doussa, published 13th June, 2008.
[17] CIEL is a “Nonprofit organization that provides environmental legal services in international and comparative environmental law.”
[18] United Nations Human Rights Office of the High Commissioner for Human Rights
[19] “Human Rights and Environmental Rights – Making the Connection” – Cecilia Riebl, published 30th August, 2012.
[20] The report of a judicial commission held under Justice Syed Mansoor Ali Shah.
[21] Report of the Judicial Flood Inquiry Tribunal, 2010.
[22] PLD 1994 Supreme Court 693
[23] Assisted by the UN.
[24] The Constitution of Pakistan 1973 Art. 25-A.
[25] See Sharafs.wordpress.com “The Avoidable 2014 Floods in Kashmir and Pakistan, published September 16th, 2012.
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