The Rights Pathway for Action on Climate Change?

By Jacqueline Peel and Hari M. Osofsky | 18 Sep 19

On 13 May 2019, a group of indigenous peoples from the Torres Strait Islands off Australia’s northern coast, lodged an official complaint with the United Nations Human Rights Committee in Geneva, Switzerland. The Islanders’ complaint alleges that by failing to take adequate action to reduce greenhouse gas emissions or to build proper adaptation measures on the low-lying islands, the Australian Government is violating Torres Strait Islanders’ cultural rights, as well as their rights to life and family.


Islanders on the frontlines of climate change

With many islands less than one metre above sea level, indigenous peoples of the Torres Strait are on the frontlines of climate change. Islanders are already experiencing detrimental effects, such as flooding of their homes and ceremonial burial grounds during increasingly intense storms, and loss of marine life with ocean warming and bleaching of surrounding coral reefs. Many Islanders are concerned that their island homes could quite literally disappear under rising seas in their lifetimes, severely disrupting their ability to practice their traditional law and culture.


A world first

The Torres Strait Islanders’ complaint, which was filed with the assistance of and a legal team at ClientEarth in the United Kingdom, is groundbreaking as the world’s first climate action brought by inhabitants of low-lying islands against a nation state. It is also the first climate case brought against the Australian Government alleging violations of human rights. Even so, the complaint builds on a longer history of climate litigation in Australia and elsewhere in the world, as well as a growing climate justice movement that seeks to harness legal pathways involving rights claims to push for stronger action on climate change.


Building on a longer history of climate litigation

As of July 2019, more than 1300 climate cases have been brought in 28 countries plus the European Union, and other regional and international tribunals, across six continents. The vast majority of these cases have been brought in the United States, with Australia having the second highest number of climate-related claims. Both countries, which are major fossil fuel consumers and exporters, have been criticised for their inadequate action on climate change.

The Trump Administration is in the process of withdrawing the United States from the Paris Climate Agreement. That process is due to reach completion the day after the next presidential election, and so the election outcome will be critical to whether the United States recommits or finalises its withdrawal. The recently re-elected Australian government remains party to the Paris Climate Agreement, but has a 2030 emissions reduction target that is regarded as one of the lowest ambition targets in the developed world under ranking systems like the Climate Change Performance Index and Climate Action Tracker.

Although most climate cases have involved actions brought under environmental statutes against government agencies, the human rights implications of climate change have always been an important thread. In 2005, for example, the Inuit Circumpolar Conference brought a petition to the Inter-American Commission claiming that the US failure to address climate change violated their rights.  The last five years, though, has seen an acceleration, with some high-profile successes and a growing number of rights-based climate cases. Two cases – the Urgenda case in the Netherlands, and the Leghari case in Pakistan – were the frontrunners of this emerging trend. Courts in both cases accepted that civil and political rights protections, like the rights to life and family, could extend to harms occasioned by climate change, and that countries had a duty to safeguard the rights of their citizens from such harms.

The victories in these cases have inspired other rights-based claims around the world; including cases in Colombia, South Africa, Uganda, the Philippines, Canada, the European Union, and the United States. Most of these cases have been brought by individuals or communities against their own governments, such as the Juliana case in the United States in which a group of youth plaintiffs claim that inadequate US climate change policy violates both the public trust doctrine and their fundamental rights. However, a claim under investigation by the Commission on Human Rights in the Philippines involves an alternative approach, which targets the 50 largest fossil fuel companies.


Harnessing international rights protections

The complaint lodged by the Torres Strait Islanders differs from these new national cases, which are based on domestic constitutional rights protections, and is more in line with the Inuit Circumpolar Conference’s 2005 petition. The Islanders’ complaint draws on human rights protected under international law in seeking to hold the Australian government to account for its inadequate action on climate change. Australia lacks a national bill of rights or constitutional rights protections meaning that these avenues are not available to Torres Strait Islanders to air their climate complaints. While the Human Rights Committee’s complaint procedure offers a soft remedy – if it finds a rights violation it can only issue non-binding recommendations – this may still be politically powerful and help draw public attention to the dangers confronting Torres Strait Islanders as a result of climate change.

The Inuit’s 2005 petition to the Inter-American Commission on Human Rights alleging rights violations as a result of global warming caused by the United States was summarily rejected by the Commission. The hope of the present Torres Strait Islander petitioners is that the United Nations Human Rights Committee will reach a different conclusion. With the Paris Agreement in force and scientific reports pointing to the increasing urgency of climate action, Torres Strait Islanders, and many other island communities throughout the Pacific, will be hoping that rights offer a viable legal pathway for addressing the severe threats they face from climate change.