International Human Rights Law Missed the Boat on Environmental Justice – Yes, Even During its Recent Success Story

By Madighan Ryan – Staff Writer, Image by `Markus Spiske on Unsplash

Evidence using an anticipatory time scale does not inspire the international human rights legal system to deliver justice, despite the time and warning it would offer governments to implement protective, mitigatory measures

On September 23 2022, eight indigenous Australian Torres Strait Islanders and six of their children became the first claimants in international legal history to successfully assert, in front of the UN Human Rights Committee, the failure of a national government to protect human rights from the consequences of government-engendered climate change.

The Australian government was found to have violated the International Covenant of Civil and Political Rights. UNHRC committee member Hélène Tigroudja affirmed that there is a pipeline from environmental degradation to human rights violations: “States that fail to protect individuals under their jurisdiction from the adverse effects of climate change may be violating their human rights.” The Australian government had not constructed seawalls or other infrastructure to protect homes, cultural sites, or food sources. They also failed to curb greenhouse gas and fossil fuel production. The flooding, extreme weather patterns, and changes to the ocean’s composition that resulted had drastic and irreversible ramifications for the claimants’ abilities to adhere to their traditional way of life on their land.

While the decision is a positive milestone in the sphere of environmental justice, its success , when compared to the failures of prior similar cases, reveals that the international human rights framework only demands accountability from national governments when the consequences of climate change are irremediable. Past claimants have used the fast-approaching inability to inhabit their land and live their traditional lifestyle as evidence. Had those claimants succeeded, governments in question could have implemented mitigatory measures rather than adaptive measures for permanent damage, as the Australian government must now undertake for the Torres Strait Islanders.

Why was Australian Torres Strait Islanders v. Australia Successful?

The UNHCR ruled in favour of the Australian Torres Strait Islanders because climate change had already prompted a chain reaction of irreversible repercussions. Bridget Lewis, author of Environmental Human Rights and Climate Change: Current Status and Future Prospects, commented for an interview with Nature: “the Torres Strait Islanders could point to effects that they were already experiencing. That triggered an obligation for Australia to protect them against those impacts.” Because the Australian government had failed to protect the Islanders against those effects while there was mitigatory and conservational potential, a pathway opened to hold the government accountable.

The Islanders were successful because their coasts had already eroded, rising sea levels had already devastated traditional food sources, and graveyards in which the Islanders communicate with deceased relatives had already been flooded and washed away. They are now forced to modify their way of life, with the assistance of the Australian government, to remain on their land.

Why did Past Petitions Fail?

The climate-vulnerable claimants, whose petitions to international human rights councils did not succeed, relied on irrefutable prognoses of damage to people, land, and culture should governments continue with extreme levels of behaviour detrimental to the climate. The evidence presented was of symptoms foreshadowing permanent ramifications, rather than evidence of the permanent ramifications themselves. 

In 2005, the chair of the Inuit Circumpolar Conference petitioned the Inter-American Commission on Human Rights (IACHR) to recommend the US government cut down and limit the emission of greenhouse gases. The Inuk woman stated she was “seeking relief from human rights violations resulting from the impacts of climate change caused by acts and omissions of the United States”, and she asked that Inuit culture, land, and lifestyle be protected. The petition also referenced “impacts of climate change that cannot be avoided”, indicating that at the time, these impacts, while strongly expected, had not yet come to full fruition. It was a pre-emptive request which, had it been successful, would have encouraged the US to alter their actions.

The IACHR refused to process the petition citing inadequate evidence “at present.” The implication was that concrete evidence would present itself in the future. 

In 2014, a Kiribati man, Teitota, was not granted climate refugee status under the International Covenant of Civil and Political Rights by the UNHRC. High tides and flooding in New Zealand forced Teitota and his spouse from their land, and “it was accepted that these deteriorating conditions of life on the islands [had] been caused, at least partly, by the effects of climate change.” The UNHRC refused their refugee status on the basis that Tetoia and his spouse had approximately 10-15 years before their community became entirely uninhabitable (in addition to technicalities of the term refugee and because no one else in his community had sought refuge).

The UNHRC determined that a 10-15 year time frame does not demonstrate the “imminent threat to life” necessary for a person to be classified a refugee. This part of their decision was in direct conflict with the UNHRC’s own statement that “Pacific Island states do not need to be under water before triggering human rights obligations to protect the right to life.

While the nature of this claim is somewhat different than that of the Australian Torres Strait Islanders or the Inuk woman, it serves as an evidentiary case study in demonstrating that evidence using an anticipatory time scale does not inspire the international human rights legal system to deliver justice, despite the time and warning it would offer governments to implement protective, mitigatory measures.

The Australian government’s defence understood that past cases had failed due to a reliance on predictive evidence: they stated that the claimants “invoke[d] potential future harms”. The UNHCR rejected this assertion which confirms that for the Australian Torres Strait Islanders, living conditions were not deteriorating, but had already reached a nadir.

Recommendations for Australian Government

The UNHRC’s ruling in favour of the Australian Torres Strait Islanders requested that the Australian government compensate the Islanders and consult with Indigenous Islander communities to identify their needs as they acclimatise to new environmental and cultural norms. Because Boigu, Poruma, Warraber and Masig, the low-lying islands on which the eight claimants and their families reside, are the only locations in which the claimants can practise their traditional way of life (including land-specific coming-of-age ceremonies), adaptive, rather than re-locative, measures must be implemented.

While the positive impacts of this ruling are undeniable, for the decision legitimises and affirms the rights of Indigenous people in an international and legal context, the case also illustrates the flaws in international law. The favourable decision is considered to be legal protection however, the failures of cases before this success story reveal “protection” as an outcome of the human rights legal system only after claimants can prove irreversible climate devastation, rather than ongoing deterioration, of a people, culture, and connection with land dating back millennia. 

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