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There goes the neighbourhood!

Human rights and climate law

By Mark Byrne and Marta Iljadica*

Uniya Occassional Paper no.12, May 2007

Human rights and environmental conservation have often been thought of as worlds apart: one concerned with protecting the liberties of individuals in their dealings with governments, the other with protecting the habitat of other species from the predations of humans. Indeed, they have sometimes been seen as being in opposition, such as when a choice is offered between the jobs of timber workers and the survival of old growth forests.

With the emergence of climate change as the defining issue of the 21st century, the falseness of this dichotomy has been exposed. No longer can we console ourselves with the illusion that society and the economy are somehow distinct from the air we breathe, the water we drink and the earth on which we walk. Human society in all its manifestations is intimately and inextricably intertwined with the fabric of life, from the smallest micro-organisms breeding in our stomachs to the great deserts, tundra and oceans. The idea that popularised chaos theory — that a butterfly flapping its wings in the Amazon affects the weather in North America — may be hard to fathom. But now we all understand that when we drive to work or turn on the heater, we are contributing, in our own small way, to the melting of the polar ice and the consequent rise in air temperature and sea levels.

While air temperatures and sea levels are rising everywhere, some places are getting wetter, others drier. The greater severity of extreme weather events is being felt mostly in the tropics. Some areas, such as the Horn of Africa and Australia’s Murray-Darling basin, are experiencing the devastating impacts of more pronounced droughts. Sea levels appear to be rising faster in some parts of the Pacific Ocean than others. [1] While some health impacts, such as increased heat stress, are generalised, others, such as the spread of mosquito-borne diseases, will be more localised. [2]

The impacts of these changes will be felt more by some people than others. Poorer people, communities and nations have less access to the information, money and power needed to adapt. They can’t, for instance, easily sell up and move to a safer or more prosperous area. They are also being forced to pay a disproportionate price for the profligacy of the rich nations that have created the problem. The increasing scarcity of water and non-renewable energy resources as the carbon economy grinds to a halt is likely to lead to political instability within nations, regional water wars and new geopolitical alignments. Finally, while the Western world behaved in the 20th century as if planet Earth was a magic pudding that could be exploited forever, our children will inherit a world that is poorer, less beautiful and more dangerous.

Framing the debate about mitigation and adaptation measures in the language of human rights would give activists and policy makers another weapon to make recalcitrant governments, corporations and individuals more responsible for life-threatening greenhouse gas pollution. If the rhetoric of human rights is also translated into treaties and legislation, all the better. Climate change is one area in which there is such a gap in scale between individual actions and collective consequences, and such a time lag between the CO2 that we pump into the air now and the time it takes for it to dissipate (more than a century by some estimates), that individual conscience and market forces cannot be left to themselves. [3]

Australia has a particular responsibility for the problem because it has only about 0.6% of the world’s population, but emits about 1.4% of CO2 and other greenhouse gases, making it among the highest per capita contributors to anthropogenic (human-induced) climate change. [4] It may have additional responsibilities in view of its role as a regional leader in the South Pacific, [5] and because of the current federal government’s enthusiastic support of United States recalcitrance on the issue of climate change generally, and the ratification of the Kyoto Protocol in particular.

Other legal options

Under the common law Australia inherited from England, when an individual, corporation or government knows something potentially dangerous is happening and has the power to stop it but does nothing, it leaves itself open to being sued for negligence (having neglected their duty of care towards those who may be affected) or nuisance (because people’s enjoyment of their own land or public land such as the Great Barrier Reef has been interfered with) as a result of their actions or neglect.

Such actions are being seriously considered by climate lawyers. [6] For instance, the Torres Strait Islanders who are warning about being forced to relocate due to rising sea levels [7] could theoretically take the federal government or large power generation companies to the court for negligence or nuisance, even if they could only claim that a small percentage of the rise in sea levels was due to action or inaction within Australia itself. [8]

Common law doesn’t apply to disputes between nations, but under the principle of state responsibility (a government has some responsibilities for the actions of its citizens and corporations), nations may be accountable to each other for limiting their greenhouse emissions. [9] The most important of these responsibilities are that there are obligations between states which are erga omnes, or owing to all, and that every state has an “obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” [10]

More specifically, there are well-established principles of international environmental law that are relevant to greenhouse emissions, including the “polluter pays” principle (if you make the mess, you clean it up, even if it’s in another country); the precautionary principle (if we don’t know what the effect of an action will be, we should act conservatively); and the recognition that the atmosphere, like the oceans, represent the “common heritage of mankind”. [11]

The effect of these principles is to create a framework of customary international environmental law within which treaties, legislation and litigation are framed and decided. The mechanisms for enforcing these principles in the international arena are mostly weak, though. And in spite of receiving generous concessions during negotiations, Australia has refused to ratify the only binding treaty on greenhouse emissions, the Kyoto Protocol, which embodies these principles. [12]

Even in the absence of binding treaties, small island states in the Pacific, for example, could take Australia to the International Court of Justice (ICJ) for breaching these principles. There are, however, numerous impediments to success, including the lack of precedents for climate change cases at the ICJ, the often protracted nature of such cases, the difficulty of attributing how much of the problem was caused by Australian sources of emissions, [13] and the difficulty of quantifying damages which would provide compensation or act as a disincentive to future pollution.

A human right to a clean environment?

Some of the basic rights protected by the major human rights treaties which emerged in the postwar period — such as the rights to life, to self-determination and to an adequate standard of living — have environmental implications. [14] It is, for instance, hard to exercise one’s right to self-determination when one’s home has disappeared under rising seas, or the right to a high standard of health when the mosquitos now carry malaria.

Half a century ago, the environmental foundations of human life and society tended to be taken for granted. Since then the link has been made more explicit. The 1972 Stockholm Declaration on the Human Environment was the first document in international environmental law to explicitly recognize the right to a healthy environment. [15] It was followed by the 1987 Brundtland Report and the 1992 Rio Declaration, which began its exposition of the principles of sustainable development by proclaiming that “Human beings... are entitled to a healthy and productive life in harmony with nature.” [16]   In 1994 a group of experts met in Geneva and drafted a Declaration of Principles on Human Rights and the Environment which “demonstrates that accepted environmental and human rights principles embody the right of everyone to a secure, healthy and ecologically sound environment, and it articulates the environmental dimension of a wide range of human rights.” [17]

The 1994 declaration has not yet led to the drafting of a treaty that would give it teeth in international law. In the absence of national legislation or a regional treaty with similar provisions, there is no way yet that you or I, let alone people in another country, could use a particular treaty to take an Australian government or corporation to court or to the United Nations for infringing our human rights by causing or allowing damaging greenhouse emissions.

Still, does the weight of so-called “soft law” declarations and resolutions listed above mean that the right to a clean and sustainable environment is now accepted as a norm of customary international law — and therefore something that all nations need to take into account in framing their laws and policies?

In theory, this makes sense: there’s not much point in, say, protecting coastlines from rising sea levels if we’re not prepared to acknowledge that the main reason we’re doing it is to protect coastal cities from inundation. It doesn’t mean we can’t also act in the best interests of other species and the planet as a whole, too. It does recognise, though, that like other animals, we are species-centric first. It also reflects the recognition that, because the very future of homo sapiens is at risk without swift and comprehensive action, climate change is perhaps the greatest human rights issue we face.

If the right to a clean environment is accepted as a norm of human rights law, it would be hard for the Australian Government, for instance, to ignore the impact of greenhouse gas pollution emitted by coal fired power stations and the transport sector on small island states in the Pacific and Indian oceans. Some of these nations and people — Tuvalu, Kiribati, the Carteret Islands off Bougainville, the Maldives — are already being seriously impacted. [18]

There are a number of theoretical problems concerned with a “right to environment.” They include the proliferation of human rights in the contemporary world (there has even been talk of a “right to tourism!”); [19] the anthropocentrism implicit in making humans, rather than other species, the focus of international environmental law; the fact than group or “solidarity” rights such as the right to development or to a clean environment represent significant expansions of the traditional focus of human rights on individuals; and the question of defining, interpreting and implementing terms like “clean,” “healthy”, “safe” and “sustainable.” Unlike “procedural” rights such as the right to a fair trial, such terms are almost impossible to quantify. There is also the issue that human rights law was originally developed to regulate relations between individual citizens and their governments, and what is being talked about here is making them responsible to the citizens of other nations. [20]

The consensus of opinion at present is that the answer to the question as to whether such a right currently exists in the global context is probably no. There is simply not enough in the way of treaties, UN resolutions, draft conventions and jurisprudence to substantiate in law the claim that if, say, people are being displaced from their homes by rising sea levels to become “climate refugees,” their human rights have been violated. This is, though, the way international law is heading. [21] Indeed, “nearly half the constitutions of the world and two regional human rights instruments [see] the right to a safe, healthy and ecologically-balanced environment as an independent human right.” [22]

This trend is backed up by comments from UN human rights committees. [23] It is also reflected in recent decisions in regional human rights courts. For instance, in 2005 the Inuit Circumpolar Conference took out a Petition to the Inter-American Commission on Human Rights [IACHR] Seeking Relief from Violations Resulting from Global Warming Caused by the United States. [24] The Inuit are being forced from their homelands by melting ice and disappearing wildlife, but the case highlights the threat to the traditional ways of life of indigenous peoples around the world. [25]

The Inuit petition was rejected by the IACHR in November 2006. [26] However, there have been other cases combining environmental and human rights law that have succeeded. For example, in Lopez Ostra v Spain, the European Court of Human Rights held that “Spain’s failure to prevent a waste treatment plant from polluting nearby homes violated the petitioner’s ‘right to respect for her home and her private and family life’, and held the state liable for damages.” [27] This decision reflects the fact that Europe, like Africa and the Americas but unlike the Asia Pacific region, has an effective regional human rights regime. These regional bodies have taken the lead in recognising the environmental component of existing human rights. [28]

Many of the basic human rights protected in the conventions ratified by Australia (the right to free speech, to a fair trial, and so on) are not guaranteed in the Constitution or federal legislation. [29] However, with a Human Rights Act passed in the ACT in 1998 and another in train in Victoria, and with a number of recent situations such as those concerning David Hicks and Cornelia Rau highlighting the need for stronger protections, there is a growing awareness in Australia of the fragility of human rights which are protected only by our common law heritage. We may therefore soon be in a position to advocate for the establishment of a regional human rights body, which would pay greater attention to the environmental dimensions of human rights than did the original postwar global conventions. [30]

In coming years, though, progress is likely to happen primarily through the greater acknowledgement and application of the principle of ecologically sustainable development (ESD), which requires economic considerations to be balanced against environmental ones. The human rights implications are made explicit in Principle 1 of the Rio Declaration: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” [31] Since 1992 ESD has become increasingly prominent in international environmental law, and the International Union for the Conservation of Nature has drafted an International Covenant on Environment and Development. [32] In Australia ESD has been invoked in recent climate change litigation, though not always successfully. [33]

Australia’s domestic responsibilities

Although the Australian Government may have no obligations to Pacific and Indian islanders and other non-Australians under human rights law, [34] because it has ratified and implemented all the major human rights treaties it does already have human rights obligations towards its own citizens (as well as permanent residents, visitors, asylum seekers, and so on).

The gradual inundation of parts of the Torres Strait Islands could, for instance, lead to complaints to the UN. Affected Islanders could lodge a complaint to the UN under Article 14 of the 1969 International Convention on the Elimination of Racial Discrimination (ICERD), or under the (First) Optional Protocol of the ICCPR. [35] Unfortunately, the committees overseeing these conventions can make recommendations, which governments are free to accept or reject. [36] Such complaints would only increase the moral and political pressure on the government rather than forcing it to take remedial or precautionary action or to pay damages. [37]

They could also launch an action for negligence, on the grounds that the federal government failed in its duty of care to Islanders by not taking steps to limit the impacts of climate change, even when it was aware of the potential risks. [38] In theory, this could result in the court issuing an injunction forcing the closure, say, of all coal-fired power stations, although this is highly unlikely given the dire economic consequences that would result. Even a favourable ruling in a domestic court would not be able to subdue the rising oceans and thus put the Islanders back in the position they would have been in had the damage not occurred. [39] It would, in other words, prove a Phyrric victory, though the threat of such litigation could be effective in forcing the government to take the issue more seriously.


Like human behaviour, international law is moving slower than the earth’s atmosphere in reacting to increased greenhouse emissions. Most of the progress in the short term is likely to be through the principle of ecologically sustainable development, rather than via an extension of human rights law. Nevertheless, there is increasing recognition that climate change is — logically and morally, if not yet legally — a fundamental human rights issue. We should therefore not shy away from using the language of human rights when arguing the case for stronger action. Ironically, this may also help to protect the futures of the other species with which we share, however briefly and imperfectly, this beautiful, fragile planet.

* This paper was written by Dr Mark Byrne, Uniya’s Senior Researcher, using the research paper ‘The Human Right(s) to the Environment and Climate Change’ compiled by University of Sydney law student Marta Iljadica during her internship at Uniya in late 2006. The full paper will footnotes can be found at www.uniya.org.


[1] Data on sea levels can be found on the website of the Global Sea Level Observing System (GLOSS): www.gloss-sealevel.org. For a warning about the reliability of this data, see the website of the UN Economic and Social Commisison for Asia and the Pacific — though this is 2000 data: www.unescap.org/mced2000/pacific/background/climate.htm#slr.

[2] While the sources of information on climate change are now too numerous to mention, the most authoritative are the 2007 reports of the Working Groups of the Intergovernmental Panel on Climate Change (IPCC): see www.ipcc.ch. For Australian data, a good start is the website of CSIRO Marine and Atmospheric Research, www.dar.csiro.au/information/climatechange.html.

[3] For a discussion of other advantages of approaching environmental problems from a human rights perspective, see the Training Manual on International Environmental Law, United Nations Environment Program, Nairobi, undated.

[4] See, eg, K Baumert and J Pershing, Climate Data: Insights and Observations, Pew Center on Global Climate Change 2004, 4: www.pewclimate.org/global-warming-in-depth/all_reports/climate_data/index.cfm.

[5] See, eg, Australia responds: Helping our neighbours fight climate change, Climate Change and Development Roundtable, 2006: www.ccdr.org.au.

[6] M Kerr, Tort Based Climate Change Litigation in Australia: A Discussion Paper Prepared for the Climate Change Litigation Forum, London, March 2002, at 12-7, www.acfonline.org.au/uploads/res_climate_change_litigation.pdf.

[7] On the threat to the Torres Strait Islands, see CSIRO, Climate Change Impacts for Australia, www.cmar.csiro.au/lawg/impacts.pdf, 7. On the impact on Islanders, see Donna Green, How Might Climate Change Affect Island Culture in the Torres Strait? CSIRO Marine and Atmospheric Research Paper 011, November 2006: http://www.dar.csiro.au/sharingknowledge/files/climateimpacts_TSIculture_report.pdf. On the possibility that some Islanders may have to move, see Liz Minchin, Going Under, Sydney Morning Herald, 12 August 2006: www.smh.com.au/news/national/going-under/2006/

[8] The grounds for action and remedies available within Australia for negligence claims were limited by state and federal legislation pursuant to the 2002 Ipp tort law reforms: see http://revofneg.treasury.gov.au/content/review2.asp.

[9] While they do not yet have the status of a treaty, the responsibilities of states were codified by the International Law Commission in 2001 and adopted by the UN General Assembly as  Responsibility of States for Internationally Wrongful Acts, document A/56/10. While the right to a clean environment is not, as we will see, commonly accepted as constituting one of these obligations,

…the set of draft articles on state responsibility drawn up by the International Law Commission included, at one point, a section to the effect that a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas, constitutes an “international crime,” the injured parties being “all other States” that make up the international community” (Akiko Okamatsu, Problems and Prospects of International Legal Disputes on Climate Change, webpaper, http://web.fu-berlin.de/ffu/akumwelt/bc2005

See also, McGee HW, ‘Litigating Global Warming: Substantive Law in Search of a Forum’ (2005) 16 Fordham Environmental Law Journal 371 at 392.

[10] The judgement in the ICJ’s Barcelona Traction case stated that there are obligations between states which are erga omnes, or owing to all, while the judgement in the Corfu Channel case asserted “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9).

[11] This was first recognised in the preamble to the 1982 UN Convention on the Law of the Sea: see www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm.

[12] The Kyoto Protocol requires member states to not exceed specified emissions levels in the period 2008-2012, and has compliance and enforcement mechanisms which apply if emissions from member states exceed their targets. Of course, since Australia and the United States have not ratified Kyoto, they are not bound by it. And in the case of Australia’s target (a very generous 8% increase over 1990 levels, thanks to vigorous last-minute lobbying), the increase means that even meeting our target implies that we’ve made the problem worse, not better. Even worse, it was reported in April 2006 that Australia would not even meet its 108% target by 2012, and is instead likely to reach 110% by 2010: see Marian Wilkinson, Kyoto figures put pressure on Howard, Sydney Morning Herald, 27 April 2007: www.smh.com.au/news/environment/kyoto-figures-put-

[13] This is the issue of “proportionate liability.”

[14] See, eg, the International Covenant on Civil and Political Rights (ICCPR) Arts 1 (self-determination and means of subsistence), 6 (life), 12 (freedom of movement and choice of residence; freedom to enter his own country); and the International Covenant on Economic, Social and Cultural Rights (ICESCR) Arts 6 (work), 11 (adequate standard of living, including freedom from hunger), 12 (highest attainable standard of physical and mental health), 15 (to take part in cultural life), etc; Other global human rights conventions which refer to environmental matters include the ICRC, Art 24 of which refers to the role of clean drinking water in combating disease and malnutrition, and the 1998 Aarhus Convention, the Preamble of which “states that every person has the right to live in an environment adequate to his or her health and well-being…” Jurisprudence from the UN human rights committees that have heard complaints and conducted investigations since the late 1960s confirm these environmental implications. This is especially the case with respect to the right to self-determination and environmental destruction. See, eg, Case 7616 (Brazil) No 12/85, 5 March 1985, in Robb CAR (ed) International Environmental Law Reports, Cambridge University Press, Cambridge, 2001 at 841.

[15] Eg, Article 1 of the Stockholm Declaration proclaims, inter alia, that “Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights [including] the right to life itself”, www.unep.org/Documents.Multilingual/Default.asp?

[16] Principle 1, Rio Declaration on Environment and Development, www.unep.org/Documents.Multilingual/Default.asp?

[17] 1994 Draft Declaration of Principles on Human Rights and the Environment, www.worldpolicy.org/globalrights/environment/envright.html.

[18] There have been numerous media reports in recent years relating to the threat to these island nations, but for an authoritative scientific overview, see Chapter 16: Small Islands of the Report of Working Group 2, Impacts, Adaptation and Vulnerability”, of the IPCC 4th Assessment Report, April 2007, or page 11 of the Summary for Policymakers: www.ipcc.ch.

[19] P Alston, Conjuring Up New Human Rights: A Proposal for Quality Control, American  Journal of International Law 78, 1984, 607.

[20] Strictly speaking, governments have responsibilities not only to their own citizens but to all those who fall under their jurisdiction, including residents, asylum seekers and visitors.

[21] See, eg, J Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary international Law, Columbia Journal of Environmental Law 25, 2000, 283.

[22] Training Manual on International Environmental Law, United Nations Environment Program, Nairobi, undated, 302.

[23] For example,

…the UN Human Rights Committee has stated that the obligation of States to ensure civil and political rights “will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities.” The UN Committee on Economic, Social and Cultural Rights has stated that States violate their duty to protect the right to health if they fail to “enact or enforce laws to prevent [air pollution]”, Global Warming and Human Rights: Testimony of Martin Wagner Before the  Inter-American Commission on Human Rights, March 1, 2007 (Inuit case), 4: www.earthjustice.org.

[24] Earth Justice, Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, www.earthjustice.org/library/reports/ICC_Human_Rights_Petition.pdf. The rights that are alleged by the Inuit to have been violated by the acts and omissions of the United States are to culture, property, health, life and security, means of subsistence, and the inviolability of the home; see  also Sheila Watt-Cloutier, Global Warming and Human Rights, www.ciel.org/Climate/IACHR_Inuit_5Mar07.html.

[25] See, eg, EM Zimmerman, Valuing Traditional Ecological Knowledge: Incorporating the Experience of Indigenous People into Global Climate Change Policies, New York University Environmental Law Journal, 13, 2005, 812.

[26] See, eg, www.ciel.org/Climate/IACHR_Inuit_5Mar07.html. It is not clear on what basis the case was rejected by the IACHR in November 2006. However, Apparently the Inuit petitioners were subsequently granted a short hearing before the Commission; though again, it is not clear why.

[27] From the website of the Center for International Environmental Law (www.ciel.org/Climate/Climate_Inuit.html). Lopez-Ostra v. Spain , ECHR (1994), Series A, No. 303C.

[28] In relation to the Americas and Africa, an argument can be made for the emergence of a regional customary human right to the environment. Decisions of the American Court of Human Rights, for instance, have linked environmental impacts to human rights through reference to the right to culture and health (the Yanomani case) and the right to property (Mayagna): on the former, see Case 7616 (Brazil) No 12/85, 5 March 1985, in CAR Robb (ed), International Environmental Law Reports, Cambridge University Press, Cambridge, 2001; on the latter, see The Case of Awas Tingni v Nicaragua: A New Step in the International Law of Indigenous Peoples, Arizona Journal of International and Comparative Law, 19, 2002, 1. See also, Global Warming and Human Rights: Testimony of Martin Wagner

Before the  Inter-American Commission on Human Rights, March 1, 2007 (Inuit case): www.earthjustice.org. However, regional custom is not evidence of a right to environment under international law. Nevertheless, similar to domestic judicial decisions, it helps to develop reasoning in this area; see J Davis, State Responsibility for Global Climate Change: The Case of the Maldives, Master of Arts and Diplomacy Thesis, Tufts University, 2005, 23. Similarly, in the Ogoni case the African Commission on Human and People’s Rights interpreted Art 24 of the African Charter on Human and Peoples’ Rights as enshrining a separate and substantive right to a healthy environment which places obligations upon the state to preserve the environment: see Communication 155/96, ACHPR/ COMM/ AO44/ 1, 27 May 2002.

[29] As advocates point out, “Australia is the only western country without a national human rights act or equivalent”: from the website of New Matilda’s Human Rights Act campaign: www.humanrightsact.com.au.

[30] Of course, while we can advocate for the establishment of such a body, that doesn’t mean its establishment is likely for a number of reasons including the perceived West-centrism of human rights discourse. In the meantime, there is one other course of action open to a Pacific nation that felt aggrieved by Australian intransigence. It could lodge a complaint under Article 41 of the ICCPR, which allows for states to lodge complaints against each other to the UN for failing to uphold its obligations under this convention. Article 41 has never been invoked by any state in any context — probably because they are nervous about being the subject of human rights complaints themselves if they lodge them about other states. In any case, it can result only in mediation or a report by the Human Rights Committee (HRC), which governments are free to accept or reject. Article 41 of the ICCPR also requires both state parties involved to have already recognised the competence of the HRC to hear such complaints (or communications). Australia lodged its Article 41 Declaration in 1993, one of only 48 states to have done so to date. To date there have been no opinions by UN human rights committees that consider the climate change issue. It would, in other words, be a largely symbolic exercise where a state has already proved itself to be immune to international criticism.

[33] Eg, in the 2005 Wambo Coal Mine and 2006 Anvil Hill and Xstrata Newlands Coal Mine cases. Although “The Wambo case was discontinued as a result of agreements being reached between the parties… the conditions of development consent imposed by the Minister stated that "Before carrying out any underground mining operations, the Applicant shall identify and assess options for reducing greenhouse gas emissions of the development…”: Australian Climate Justice Program, www.cana.net.au/ACJP/cases.php?case_table=cases_aust.

[34] Unless it can be proven that the citizens of other states are shown to be subject to Australia’s jurisdiction. However, the emission of greenhouse gases is not equivalent to the exercise of public power and therefore it cannot meet the standard of effective control necessary to make the nationals of other states subject to Australia’s jurisdiction. See, eg, HW McGee, Litigating Global Warming: Substantive Law in Search of a Forum, Fordham Environmental Law Journal 371, 16, 2005, 392.

[35] See www.ohchr.org/english/law/cerd.htm. Australia ratified the ICERD in 1975.

[36] The complaint would only be heard by the relevant UN committee after all possible domestic remedies had been exhausted.

[37] If they thought they were being discriminated against on the basis of their race, Torres Strait Islanders could make a complaint under the Commonwealth Racial Discrimination Act 1975 or relevant State and territory legislation. While direct or deliberate discrimination would be hard to prove, given that climate change will affect all Australians (albeit unequally), the federal act also prohibits indirect discrimination —ie, a policy or rule which disadvantages people of one race or ethnicity more than others, “even if it applies equally to everyone and appears to treat everyone in the same way”: from the website of the Human Rights and Equal Opportunities Commission: see www.hreoc.gov.au/racial_discrimination/guide_to_rda/index.html.

[38] Assuming a defendant could be identified in a potential suit, difficulty is likely to be encountered in proving that the government is responsible for the damage sustained. A simple ‘but for’ test (the Torres Strait would not have been inundated but for the negligence of the defendant) is unlikely to be satisfied given the multitude of states responsible for climate change. This is not to say, however, that case law may not develop to accommodate the peculiarities of climate change. Certainly, companies that produce and use fossil fuels have been identified as potential defendants. See M Kerr, Tort Based Climate Change Litigation in Australia: A Discussion Paper Prepared for the Climate Change Litigation Forum, London, March 2002, at 12-7, www.acfonline.org.au/uploads/res_climate_change_litigation.pdf.

[39] See generally Luntz H and Hambly D, Torts: Cases and Commenatry, 5th ed., Lexis Nexis Butterworths, Chatswood, 2002, 535-597.


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