Climate change litigation in 3D: the new human rights dimension

Climate change has traditionally been approached from a two dimensional space. Firstly, as an environmental problem, or more recently, as an economic one. However, the climate change discourse now features an increasing focus on a third dimension – human rights – with the first climate change litigation based on human rights being brought against the Australian federal government, and the first legal action worldwide being brought by inhabitants of low-lying islands against a nation state.

In essence, a human rights-based approach to climate change centres the debate on individuals and communities. By viewing climate change through a human rights lens, as opposed to an ecological or economic lens, the question is framed in different terms.

The human costs of climate change threaten internationally accepted human rights: rights to life, to food, to a place to live and work. The question is, however, the extent to which nation states are accountable to their populations for an interference with these rights, because of climate change.

What is the complaint?

On 13 May 2019, a group of eight Torres Strait Islanders submitted a complaint to the United Nations Human Rights Committee alleging that the Australian federal government is violating their fundamental human rights through its failure to address climate change.

The Human Rights Committee is a body of 18 legal experts that sits in Geneva, Switzerland. The Committee is established to monitor compliance by nation states with the International Covenant on Civil and Political Rights (ICCPR). The ICCPR Optional Protocol allows individuals who have been the victim of a human rights violation by a signatory state to submit a written communication to the Human Rights Committee.

The complainants allege that the Australian federal government has violated the following rights under the ICCPR: Article 6 (the right to life); Article 27 (the right of persons belonging to a minority to enjoyment of their own culture); and Article 17 (the right to be free from arbitrary interference with privacy, family and home).

In particular, the complaint contends that these rights have been violated both by the government’s insufficient greenhouse gas mitigation targets and plans, and by its failure to fund adequate coastal defence and resilience measures on the islands, such as seawalls.

Solicitors from environmental law charity, ClientEarth, are representing the complainants, with support from barristers from 20 Essex Street Chambers in London. Lawyers for the complainants allege that the catastrophic nature of the predicted future impacts of climate change on the Torres Strait Islands, including the submergence of ancestral homelands and rising sea temperatures resulting in coral bleaching and ocean acidification, are sufficiently severe so as to constitute a violation of the rights to culture, family and life.

It could take up to three years before a decision is made. Once a response to the complaint is received from the Australian federal government, and a reply is made by the Human Rights Committee, the matter could proceed to a determination on the papers or by way of an oral hearing.

What will a decision mean legally?

The institutional design of the Human Rights Committee and its supervisory functions raises questions as to whether its decisions are legally binding on the parties before it. The prevailing view is that they are not given the Committee’s non-judicial or, at best, quasi-judicial character, but that they are authoritative.

There are no explicit enforcement mechanisms in the ICCPR. Therefore, even if the Human Rights Committee determines there has been a violation, it will not be able to force the Australian federal government to comply with that decision.

With that said, nation states do frequently comply with decisions of the Human Rights Committee. The ICCPR is a fundamental element of the modern international human rights system and under the Vienna Convention on the Law of Treaties, state parties are obliged to both perform the treaty and take the Committee’s views into consideration in good faith.

Any resulting decision may therefore create international and reputational pressure on Australia to comply with the decision or take specified action towards compliance. Particularly in the absence of direct implementation of the ICCPR into Australian domestic law or an Australian Bill of Rights.

A decision in this matter will also provide important guidance to States, civil society and individuals in interpreting the contemporary meaning of human rights obligations within the climate change context.

Where to next?

It is a difficult task to predict the trajectory of climate change litigation, particularly in light of this complaint. What is more certain is that as the impacts of climate change become ever more apparent, so too will the impacts on individuals, communities and populations.

There is little doubt that this would lead to an upsurge of individuals vindicating their rights not only at the international level, but also commencing complaints and possibly even claims under State law, where those rights are enshrined in legislation. There could also be some intersectionality in claims between the environmental, economic and human rights impacts of climate change.

We asked ClientEarth’s lead lawyer for the case, Sophie Marjanac, about what she sees as the future of climate change litigation:

There is a growing global trend of climate change litigation, and this is likely to increase as climate loss and damages increase, as scientific evidence linking human activity to extreme weather improves, and as the economics of the energy transition reach a tipping point.

We also asked her how prominent she thinks human rights will be in this debate:

We expect that cases relying on human rights violations will also increase. Climate change threatens a human rights crisis in Australia, the Pacific and around the world. Sea level rise will cause forced migration, crop failures and drought are likely to affect the rights to water and food, increasing vector born disease affects the right to health and extreme weather events risk exacerbating many other human rights risks. Recently, Philip Alston, UN special rapporteur on extreme poverty and human rights, said climate change will undermine the achievement of all rights, and “threatens to undo the last 50 years of progress in development, global health, and poverty reduction”. This is a catastrophe all governments must work to avoid.

Therefore, as the impacts escalate, the challenge in the climate change debate will be to find a way to equitably distribute rights and liabilities among individual countries, multinational corporations, international institutions, and, most abstractly, past, present and future generations as a whole.

This post was written by Maddocks lawyer Nathan Lambrinos


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