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UNHRC rules that Australia’s lack of climate action violated human rights

© Shutterstock / Natalie MaroPost Thumbnail

The UN Human Rights Committee (UNHRC) has ruled that Australia’s former Coalition government violated the human rights of indigenous Torres Strait Islanders through its failure to act on climate change. 

  • The UNHRC has ruled in favour of a group of indigenous Torres Strait Islanders who claimed that the Australian government had failed to take appropriate measures to preserve their culture, livelihoods and way of life from climate change. 
  • Its ruling sets a precedent as the first time an international tribunal has found a country in violation of human rights laws through inadequate climate action. 
  • As human rights law is increasingly cited in climate litigation cases, policy-makers and investors will have to incorporate indigenous rights within their climate action strategies. 

In 2019, a group of eight Torres Strait Islanders and their children filed a legal complaint with the UNHRC, claiming that Australia’s failure to upgrade the island’s sea walls and reduce greenhouse gas emissions had had drastic consequences for their way of life. 

They described how rising sea levels had destabilised their livelihoods, impacted their food supply, devastated their homes and flooded sacred sites and cemeteries that were traditionally used to host cultural ceremonies. 

Based on evidence from the Intergovernmental Panel on Climate Change’s Sixth Assessment Report, which called for urgent action to protect the area, the UNHRC has now ruled that Australia had violated the islanders’ rights to enjoy their culture and be free from arbitrary interference to privacy, family and home.  

The committee has demanded that the islanders be given fair compensation, that new seawalls must be installed in the area within the next year, and that additional measures should be taken to prevent potential loss of life. 

“This decision marks a significant development as the Committee has created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable to the negative impacts of climate change on the enjoyment of their human rights,” said UNHRC member Hélène Tigroudja. 

The interconnection between human rights and climate action 

Climate change and human rights are inextricably linked, as the impacts of the former – such as rising sea levels, increasingly severe weather conditions, biodiversity loss and resource scarcity – infringe on people’s rights to social, cultural and economic wellbeing as well as their physical safety. 

Going beyond specific rights that can be impacted by climate change, including the rights to life, health, food and water, the UN now recognises access to a clean, healthy and sustainable environment as a human right in itself. 

For indigenous communities, many of which live in high-risk areas such as islands, coastal areas or fragile forest ecosystems, these rights are particularly endangered. The influence of colonialism, whether external or by settlers, has compounded the issue as indigenous communities have been exposed to oppression and neglect that has left them without the necessary resources to manage the impacts of climate change on their own land.  

Despite their heightened vulnerability, however, indigenous peoples hold far less responsibility for climate change. Their way of life is typically centred around spirituality and stewardship of the land, while the vast majority of climate risks are accounted for by colonial practices and the expansion of industrial capitalism. 

As such, the responsibility to mitigate or adapt to climate risks and avoid their infringement of human rights lies with more powerful institutions such as national governments and global industrial sectors. 

Human rights in climate litigation 

Following this reasoning, human rights law has increasingly been included within climate litigation cases. A 2020 report on Global Trends in Climate Change Litigation found that, between 2015 and 2020, 36 lawsuits had been brought against states for human rights violations relating to climate change while before 2015 only five rights-based climate cases had been filed worldwide. 

The report describes this phenomenon as a “human rights turn” within climate litigation, citing new cases emerging across the world. Specifically, it notes that human rights law has been cited in cases involving the circumstances of people displaced by climate change and those seeking justice for future generations. 

Similarly, the UN Environment Programme’s (UNEP) Global Climate Litigation Report, also published in 2020, concludes that cases are increasingly relying on fundamental human rights including the right to life, health, food, and water. It predicts that rights-based climate litigation will increase, particularly with respect to companies misreporting climate risks or governments failing to adapt to extreme weather events. 

According to Arnold Kreilhuber, acting director of UNEP’s law division, “citizens are increasingly turning to courts to access justice and exercise their right to a healthy environment. Judges and courts have an essential role to play in addressing the climate crisis”. 

What does this mean for policy-makers and investors? 

The ruling in Australia sets several important precedents. It is the first time that an international tribunal has found a government in violation of human rights law due to inadequate climate policy, as well as the first time a nation state has been declared responsible for their greenhouse gas emissions under international human rights law. It is also the first time that people’s right to culture has been legally recognised as being vulnerable to the impacts of climate change. 

These precedents come at an important time as, in the lead up to COP27, there has been a significant push for climate-related loss and damages to be meaningfully included in international negotiations.  

A group of over 400 global organisations has sent a letter to the UN climate change heads of delegations, calling on them to ensure that loss and damage finance forms part of COP27’s formal agenda, while others have called for specific recognition and compensation for non-economic losses and damages such as those to health and wellbeing, cultural sites or sacred places. 

This pressure on international policy-makers to incorporate human rights, particularly those of indigenous communities, will also be extended to investors. 

Indigenous rights will increasingly be recognised as posing both social and regulatory risks to investment, but could also provide certain opportunities. Investing in indigenous communities could, for example, could support traditional cultures of stewardship that reduce exposure to risks associated with climate change or biodiversity loss. 

As such, banks and investors must make sure their attempts to deliver climate and biodiversity goals are both fair and inclusive in order to achieve the interconnected goals of a just transition. 

Such efforts can already be seen within the growing trend towards biodiversity finance. As major global financial institutions have called for the upcoming Global Biodiversity Framework to align public and private financial flows with biodiversity commitments, others have recommended that it follow a strict human rights-based approach

This demonstrates how the growing use of human rights law in climate litigation cases could prompt the inclusion of indigenous rights in both state policy and investment decisions, with the Australian ruling likely to add even greater pressure. 

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