Sarah Macdonald
Despite discourse about climate change typically revolving around ecological harms, climate change also threatens human rights. Unpredictable seasons and rising sea levels impact where and how people live. Rising oceans have the potential to displace hundreds of millions of people. Hotter weather will contribute to food insecurity. These same changes threaten the destruction of important cultural sites. The threats to fundamental human rights posed by climate change are now beginning to inform climate change litigation in new ways. Human rights-based strategic litigation is helping to hold governments accountable.
Which human rights are impeded by climate change?
Changes to the environment wrought by climate change impact several fundamental human rights. Most pressing is the right to life. Creeping changes to the environment can reduce the fertility of food-producing land, limit access to safe water and render certain seasons or places uninhabitable. Sudden extreme weather events – such as storms, floods, fires and landslides – can cause sudden and significant losses of life.
Climate change also threatens the right to health. Warmer climates are likely to cause the expansion of tropical diseases, such as malaria and dengue fever, to new parts of the world. Changing weather conditions will also increase food scarcity, leading to increased malnutrition and famine.
Climate change threatens the right to culture through the destruction of important cultural and environmental sites. In many low-lying parts of the world, places of deep cultural significance are literally disappearing beneath rising seas. Refugees displaced by climate change may be separated from their cultural roots.
Similarly, climate change threatens the right to be free from arbitrary interference with privacy, family and home. Some estimates suggest that by 2050, more than 150 million climate refugees will have been displaced by climate change.
Why take a human rights-based approach?
Climate change is fundamentally an environmental issue. An important limitation of human rights law is its anthropocentric perspective: climate change threatens biodiversity and ecological systems, not just humans. Why, then, would litigants opt for a rights-based approach to climate litigation over an environmental law approach?
The ‘human rights turn’ in climate litigation is largely due to a spate of recent successes using a rights-based approach. While parties to the Paris Agreement have committed to nationally determined environmental objectives, these contributions are not enforceable. Therefore, they do not provide prospective litigants with a cause of action. Conversely, many parties to the Paris Agreement are also parties to legally enforceable human rights instruments. States’ failure to respond to climate change can amount to a breach of their human rights obligations, which has led claimants to increasingly use human rights as a tool to achieve climate justice.
Human rights-based liability for climate inaction
In the decades to come, climate change will continue to threaten millions of people’s enjoyment of their fundamental human rights. Courts are increasingly being asked to consider whether states can be held responsible for their actions – such as approving licences for fossil fuel extraction – and inaction – such as failing to commit to emissions reduction targets – which fail to mitigate or ameliorate the impacts of climate change. However, several factors make determining a State’s liability for these actions and inactions difficult: the extended time frames over which climate change has occurred, the difficulty of identifying clear victims, the complexity of assigning causation and the legal challenge of assessing future harms. In 2020, the Australian Government argued that the UN should dismiss a case brought by Torres Strait islanders concerning the impacts of climate change, because the case concerned “future risks, rather than impacts being felt now, and is therefore inadmissible”.
Past international success
Despite the complexity of these questions, human rights-based climate litigation is a rapidly growing area. From May 2019 to May 2020, climate litigation commenced across six continents. These cases follow the earlier success of the ground-breaking case Urgenda Foundation v State of the Netherlands. In Urgenda, the Urgenda Foundation and 900 Dutch citizens sued the Dutch government for its failure to mitigate the effects of climate change. The Dutch Supreme Court ultimately found that the impacts of climate change fell within the scope of the Netherlands’ obligations under the European Convention on Human Rights. Specifically, the Supreme Court upheld the Dutch government’s obligations under Article 2, the right to life, and Article 8, the right to private and family life. As a result, the Dutch government was ordered to significantly reduce its greenhouse emissions. Following the Urgenda Foundation’s initial success in the Hague District Court in 2015, human rights-based climate litigation gained traction as a means of prompting government action. As more cases are heard, answers to the questions posed above are slowly emerging. For example, as climate science and legal attitudes towards causation evolve, Courts are beginning to reject the argument that a single state’s contributions represent a mere ‘drop in the ocean’ of global climate change. In 2018, the Human Rights Committee stated in General Comment 36 that the duty to protect the right to life extends to protecting life from “all reasonably foreseeable threats”, suggesting that the duty extends to future threats.
The Australian context
In addition to the growing number of international cases, Australia has seen its own share of rights-based climate litigation. As well as international human rights law, local human rights legislation such as the Human Rights Act 2004 (ACT), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2019 (Qld) may be shown to give rise to similar obligations as their counterparts overseas. In May 2020, the approval of a coal mine in Queensland was challenged under the newly commenced Human Rights Act 2019 (Qld). In September 2020, the Land Court of Queensland concluded that it had jurisdiction and was obligated to consider human rights objections made under the Human Rights Act. In 2021, the Federal Court of Australia established that the Federal Minister for the Environment owed a duty to avoid causing harm to young people in Australia arising from climate change. This duty could invoke human rights such as the rights to life, culture and health, as discussed above, and could potentially lead to human rights-based litigation if the duty is breached.
The Torres Strait eight
In the Torres Strait, a group of First Nations leaders have filed a complaint against the Australian government over its failure to prevent the effects of climate change. The complaint, which was submitted to the United Nations Human Rights Committee, alleges that the Australian government has violated the complainants’ human rights under the International Covenant on Civil and Political Rights (ICCPR). The shallow waters of the Torres Strait means that islanders are extremely vulnerable to sea level rise and storm surges, and a 2014 report from the Climate Council reported that sea level data collected from one location in the Torres Strait demonstrated an annual sea level rise of more than double the global average between 1993 and 2010. The complainants argue that the government has violated the rights to be free from arbitrary interference with privacy, family and home, to culture and to life. If successful, the case may pave the way for others to demand action from the government in the face of the climate crisis.
Sarah Macdonald interned with the Australian Journal of Human Rights in Term 3, 2021 and is in her fifth year of a Bachelor of Laws and Media (Journalism & Communications) at UNSW.