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Article Excerpt
[The Torres Strait Islands are among the most vulnerable regions to climate change in Australia. This paper examines the implications of climate change for Torres Strait Islanders' human rights protected by the International Covenant on Civil and Political Rights ('ICCPR'). A key purpose is to assess the viability of a complaint being made to the United Nations Human Rights" Committee under the ICCPR Optional Protocol, contending that Australia's' ongoing .failure to adopt sufficient measures to reduce greenhouse gas emissions constitutes a violation of Islanders' Covenant rights'. Importantly. it is argued that despite the Rudd Government's ratification of the Kyoto Protocol and announcement of improved domestic emissions abatement measures, Australia must still adopt much tougher measures before it will satisfy its obligations under the ICCPR. The article concludes that whilst a claim by Islanders would have compelling legal merit, the complexity of issues such as causation and standing mean that it is" unclear how the Committee would ultimately determine the case.]
CONTENTS I Introduction II Climate Change: Consequences for the Torres Strait A The Evidence on Climate Change and Its Causes B The Likely Future Effects of Climate Change III The Rationale for Adopting a Human Rights Approach to Climate Change A The Federal Government's Response to Climate Change B Litigation Options for Torres Strait Islanders C The Human Rights Option IV Linking Climate Change to Human Rights A Connecting Civil and Political Rights to Environmental Harm 1 The Right to Life and the Right to Freedom of Residence and Movement--ICCPR Arts 6, 12 2 The Right to Culture -- ICCPR Art 27 3 The Right to Privacy, Family and Home -- ICCPR Art 17 B The Case of the Inuit -- Linking Human Rights to Climate Change 1 Rights Allegedly Infringed 2 Holding the US Responsible V The Impact of Climate Change on Torres Strait Islanders' Rights and Freedoms Protected by the ICCPR A The Right of Minorities to Enjoy Their Culture B The Right to Self-Determination C The Right to Life D The Right to Protection of Privacy, Family and the Home E The Right to Freedom of Residence and Movement VI Holding Australia Responsible for a Violation of the ICCPR A Is Australia Meeting Its Obligations under the ICCPR? B International Measures 1 The Kyoto Protocol 2 Post-Kyoto Negotiations C Domestic Measures 1 Target Setting 2 Mandatory Targets 3 Domestic Policy for Achieving Targets 4 What Would Be an Appropriate Remedy? D Exhaustion of Domestic Remedies, Causation and Standing 1 Exhaustion of Domestic Remedies 2 Causation 3 The Precautionary Principle 4 Standing E Comparison with the Inuit Petition VII Conclusion
I INTRODUCTION
During the Howard Government's term in office, climate change litigation emerged as a response to the threat of global warming largely because of the perceived legislative and policy inaction of the Coalition on this issue. (1) Although Australian greenhouse gas ('GHG') emissions account for only 1.5 per cent of global emission levels, Australia is currently the 16th largest and fourth highest per capita emitter worldwide, (2) making it an undeniably large greenhouse polluter by world standards. Following the election of the Rudd Government in November 2007, Australia certainly has a federal government with a stronger commitment to preventing dangerous climate change (potentially eliminating the need for climate litigation). Yet, as will be shown, Australia's GHG emissions mitigation program remains inadequate. Moreover, the truly gargantuan long-term emissions abatement required of industrialised nations like Australia--most likely 80 to 95 per cent of 1990 levels by 2050 (3)--suggests that litigation will have a continuing role to play in pressuring government to adopt and enforce appropriate emissions reduction law and policy.
One recent example of climate litigation overseas utilises international human rights law. In December 2005, the Inuit of Alaska and Canada filed a petition with the Inter-American Commission on Human Rights ('IACHR'), alleging that the failure of the United States to curtail its GHG emissions constitutes a violation of their rights and freedoms protected by regional and international human rights law. (4) Climate change similarly has ramifications for human rights in Australia. A particularly clear example of this is the case presented by the indigenous peoples of the Torres Strait Islands. Recent scientific evidence indicates that if dangerous levels of climate change are not avoided, up to 2000 Torres Strait Islanders will 'likely' be displaced to the Australian mainland later this century. (5)
In light of this potential human tragedy and the absence of legal scholarship addressing this issue, this article's purpose is to explore the implications of global warming for Torres Strait Islanders' human rights protected by the International Covenant on Civil and Political Rights" ('ICCPR'). (6) A key aim will be to assess the viability of a complaint being made to the United Nations Human Rights Committee ('HRC') under the ICCPR Optional Protocol, (7) contending that Australia's ongoing failure to adopt sufficient legal and policy measures to reduce GHG emissions constitutes a violation of Islanders' rights and freedoms protected by the Covenant. Importantly, it is argued that despite the Rudd Government ratifying the Kyoto Protocol (8) and announcing improved domestic emissions abatement measures, Australia must still adopt much tougher measures both internationally and domestically before it will satisfy its obligations under the ICCPR.
This article will consider the most recent evidence on climate change and its likely impacts on the Torres Strait (see Part II). Part III will identify the rationale for adopting a human rights-based approach to the problem of climate change, noting the limitations of other litigation options. In Part IV, the legal precedent for linking civil and political rights norms to environmental harm will be examined, drawing upon key cases of the HRC and other human rights bodies. The Inuit Petition to the IACHR, which is yet to be determined by the Commission, will also be outlined. Part V will then identify the primary ICCPR rights that are threatened by climate change for Tortes Strait Islanders. Finally, Part VI will consider the major legal hurdles a Torres Strait Islander complaint to the HRC would need to overcome in order to be successful.
II CLIMATE CHANGE: CONSEQUENCES FOR THE TORRES STRAIT
The Torres Strait, which is part of the State of Queensland, Australia, encompasses roughly 48 000 square kilometres of open seas between the tip of Cape York and the southern coast of Papua New Guinea. (9) Approximately 6958 indigenous Islanders of Melanesian origin live on 17 of the 150 islands in the Tortes Strait, representing roughly 15 per cent of Australia's total Torres Strait Islander population. (10) As a low-lying region, the Tortes Strait is at similar risk from rising sea levels as Pacific Island nations such as Yuvalu. (11) Donna Green, CSIRO scientist and contributing author to the IPCC Fourth Assessment Report, believes that the Torres Strait is among the 'most vulnerable regions' to climate change in Australia. (12) In particular jeopardy are the approximately 1500 people living on the Torres Strait's north-western islands of Boigu and Saibai, and the central islands of Masig, Poruma, Warraber and Yam (or Iama). (13) Some parts of these islands are less than one metre above sea level and communities are often situated only metres from the beach. (14)
A The Evidence on Climate Change and Its Causes
Central to the proposition that Torres Strait Islanders' human rights may be violated by climate change is the strength of scientific evidence on its causes and effects. For many years scepticism on global warming has been rife. (15) But following the release of the IPCC Fourth Assessment Report in 2007, (16) there is now overwhelming evidence that climate change is a reality. Indeed, the IPCC Fourth Assessment Report states that '[w]arming of the climate system is [now] unequivocal' (17) Furthermore, it has 'very high confidence' (at least 90 per cent certainty) that climate change has occurred in the Australian region. (18) This is indicated, for example, by the 0.4 to 0.7 [degrees] C of warming Australia has experienced since the 1950s. (19)
There is now also substantial evidence that global warming is being caused by human activity, particularly from the release of carbon dioxide ('C[O.sub.2]') during the burning of fossil fuels. (20) To this end, the IPCC Fourth Assessment Report states that rising global temperatures since the mid-20th century are 'very likely' due to increased anthropogenic GHG emissions (a probability of greater than 90 per cent). (21) This assessment represents a significant advance on the IPCC Third Assessment Report, which could only conclude that human responsibility for global warming was 'likely' (at least 66 per cent certainty). (22)
Probably the most concerning observation of climate change for Torres Strait Islanders is the estimated 17 centimetre increase in global sea levels during the 20th century. (23) Visibly rising sea levels have caused many Torres Strait Islanders to conclude that climate change has arrived. (24) Whilst the precise amount of sea level rise in the Torres Strait has not been recorded, (25) Australian seas generally have risen 7 centimetres since 1950. (26) Residents, including Torres Shire Mayor, Pedro Stephen, now believe that their islands are 'sinking'. (27) Physical evidence supports this view. In August 2007, Helen Mosby showed The Courier Mail the dramatic impact of sea level change on Masig Island, where the 'ocean has eaten up the road'. (28) Ms Mosby stated: '[i]t is a big change, and it seems to be getting worse in the past two years or so'. (29) More than 60 metres of land has been consumed on another island, Poruma, since 2000. (30)
Many Islanders believe that recent severe weather events may also be a sign of global warming. (31) In January and February 2006, king tides, (32) strong winds and heavy rain caused severe damage to the north-western and central islands as high tides destroyed sea walls and flooded houses, roads and airstrips for several hours. (33) On Yam Island, six families, including about 20 children, were evacuated. (34) This event followed the king tides of mid-2005 which flooded several houses on Mer Island. (35) These two events were unusual; previously, such levels of flooding had occurred only once in living memory. (36) Green supports the view that these weather events may be indications of global warming stating that it 'is likely that climate change is playing a part in these recent inundations'. (37)
B The Likely Future Effects of Climate Change
The IPCC has significantly improved its ability to project future climate change since its Third Assessment Report, but climate projections remain highly variable. Depending on the extent to which nations reduce worldwide GHG emissions, the IPCC's 'best estimate' for temperature increases is 1.8-4 [degrees] C by the end of the 21st century. (38) Due to historic emissions, at least 0.4 [degrees] C of warming can be expected over the next two decades. (39) In Australia, an average warming of 0.1-1.0 [degrees] C is likely by 2020, 0.3-2.7 [degrees] C by 2050, and 0.4-5.4 [degrees] C by 2080. (40) Of particular concern for the Torres Strait is that global sea levels are projected to rise from between 18-38 centimetres to 26-59 centimetres by 2100; however, this could be as much as 79 centimetres. (41) In a worst-case scenario, the Greenland ice sheet could melt, resulting in a staggering seven metre rise in sea levels. (42)
According to Green, identifying the likely climate impacts in the Torres Strait is difficult because of the lack of available data. (43) Climate projections for the nearby Cape York, however, suggest likely temperature increases of 1.3-1.4 [degrees]C for the region by 2050. (44) Of most concern for Islanders will be the impact of sea level rise in conjunction with a likely increase in extreme weather events, causing flooding and erosion. (45)
The IPCC Fourth Assessment Report makes it quite clear that the physical consequences of climate change could have devastating impacts globally on human society and the natural environment. (46) For Torres Strait Islanders, Green identifies the areas of culture, health, biodiversity, water resources, buildings and infrastructure as being at greatest risk. (47) Most worryingly, the IPCC predicts that climate change will 'likely' cause the displacement of up to 2000 Torres Strait Islanders later this century. (48)
III THE RATIONALE FOR ADOPTING A HUMAN RIGHTS APPROACH TO CLIMATE CHANGE
A The Federal Government's Response to Climate Change
During the Howard government's time in power, the concept of Torres Strait Islanders taking a complaint to the HRC appeared to have obvious merit, given the Coalition's inadequate efforts to mitigate Australia's rising GHG emissions. (49) Although the Howard Government spent approximately AU$3.4 billion (50) on a range of mainly voluntary programs to contain emissions growth, (51) only mounting public pressure and the looming federal election in 2007 finally forced it to acknowledge that much stronger measures were needed. (52) Significantly, however, the Coalition continued to hold out on ratifying the 1997 Kyoto Protocol, (53) under which developed nations committed to reduce their combined GHG emissions by 5.2 per cent below 1990 levels by 2008-12. (54) Moreover, despite nonetheless claiming to be committed to achieving Australia's individual target of 108 per cent of 1990 levels by 2008-12 (which it agreed to as a Kyoto Protocol signatory), (55) a 2006 report by the Australian Greenhouse Office estimated that Australia's emissions would in fact reach 109 per cent of 1990 levels during the Kyoto commitment period. (56) Worse still, emissions would escalate to 127 per cent of 1990 levels by 2020. (57)
With the coming to power of the Rudd Government, a stronger federal approach to climate change mitigation has arrived, as evidenced by Labor's immediate ratification of the Kyoto Protocol. In addition, Labor has set a target of reducing Australia's GHG emissions by 60 per cent of 2000 levels by 2050. (58) Significant measures have been promised to enable Australia to meet this target, most notably a national emissions trading scheme--the Carbon Pollution Reduction Scheme, to be operational by 2010 (59)--and a mandatory 20 per cent Renewable Energy Target ('RET') for 2020. (60) This obviously raises the question of whether litigation to encourage a responsible federal emissions reduction program remains necessary. It is submitted, however, that for several reasons, it is too early to draw such a conclusion.
First, Labor's 60 per cent emissions reduction target for 2050 is inadequate: according to the IPCC, a cut of 80 to 95 per cent on 1990 levels is more likely required. (61) Yet the Rudd Government has stated that it will not increase its target. (62) Second, Labor will not set its 2020 target until later in 2008 and this may also be set at an insufficient level. Third, the Rudd Government has only adopted an aspirational target for 2050 (and will likely do the same for 2020), when clearly mandatory targets are needed. These issues are properly explored in Part VI. Lastly, governments have a proven tendency to introduce much weaker policies than are actually necessary to meet their emission reduction targets, as demonstrated by the expected failure of many industrialised states to achieve their modest goals under the Kyoto Protocol. (63)
While Australia is now projected to meet its Kyoto target because of new Labor initiatives, (64) it must be remembered that Australia has a very weak target compared to other developed nations in two respects. First, Australia's target allows for an eight per cent increase in emissions whereas most nations are required to make emissions cuts; (65) and second, most of Australia's emissions abatement is the result of reduced land clearing and deforestation--a source of emissions abatement uniquely granted to Australia during Kyoto negotiations. (66) Deep post-Kyoto emission cuts in Australia will be far more difficult to achieve, particularly as energy sector emissions,...
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