20 May 2019

Jura researcher's analysis is reflected in legal claim to the UN Human Rights Committee for the impacts of climate change

Indigenous people from the Torres Strait Islands have filed a landmark complaint with the UN Human Rights Committee that the Australian Government’s failure to adequately mitigate emissions, and inaction on climate adaptation, constitute violations of their human rights. In September last year, Assistant Professor Miriam Cullen published an article, which theorized this exact claim.

In ‘”Eaten by the Sea’: Human Rights Claims for the Impacts of Climate Change upon Remote Subnational Communities’, published in the Journal of Human Rights and the Environment, Miriam argued that a legal claim to the UN Human Rights Committee by Torres Strait Islanders would be timely for several reasons. Firstly, human rights have become a sine qua non of contemporary climate discussions, appearing with increased prominence in international agreements. At the same time, the environmental responsibilities of the state are increasingly forming part of the human rights vernacular, including within the Human Rights Committee itself. Secondly, in the course of the past two decades, the Australian Government’s emissions policies have become less, not more, environmentally friendly. Thirdly, domestic remedies for the effects of anthropogenic climate change are likely to be more difficult to attain in Australia than in comparable jurisdictions. And, fourthly, litigious action in human rights for the climate change consequences of emissions policy has recently met with relative success, and recent case law has contradicted the idea that liability can be universally avoided simply because of an inability to show direct causation by a single state.

The impact of climate change on the Torres Strait Islands is already apparent. The islands’ ecosystems and biodiversity are unique and delicate, yet many villages are only marginally above high tide and seawater inundation caused by sea level rise already threatens many homes. Rising sea levels and more frequent extreme weather events caused by climate change also has significant consequences for the social and cultural cohesion of Island residents, who strongly connect their cultural, mental and physical well-being and identity to the health of the land around them.

Miriam’s article focused especially on potential violations of Article 6 of the International Covenant of Civil and Political Rights (the right to life) and Article 27 (the rights of minorities) and considered an emerging right to an environment of a particular quality. The legal claim to the UN Committee also relies on these provisions, and additionally argues breaches of Article 17 (the right to be free from arbitrary interference with privacy, family and home).

The next stage in proceedings will be the Human Rights Committee’s assessment of standing and admissibility. While it is likely the claimants will have standing, admissibility is perhaps the biggest hurdle, as the claimants will need to show that they have exhausted all possible domestic remedies. Even if the claim does not proceed, its very submission is further indication of a changing tide in climate litigation.