Guest essay by Eric Worrall
The Australian government has asked the United Nations to dismiss a climate case brought by Torres Strait islanders, on the grounds the harms they claim are a violation of their human rights have not happened yet. The Torres Strait islands are steaming hot tropical islands which sit just to the north of the Australian mainland.
Australia asks UN to dismiss Torres Strait Islanders’ claim climate change affects their human rights
Complaint argues Morrison government has failed to take adequate action on emissions or adaptation measures
The complaint, lodged just over 12 months ago, argued the Morrison government had failed to take adequate action to reduce emissions or pursue proper adaptation measures on the islands and, as a consequence, had failed fundamental human rights obligations to Torres Strait Islander people.
But the lead lawyer for the case, Sophie Marjanac, says the Coalition has rejected arguments from the islanders, telling the UN the case should be dismissed “because it concerns future risks, rather than impacts being felt now, and is therefore inadmissible”.
Marjanac said lawyers for the commonwealth had told the committee because Australia is not the main or only contributor to global warming, climate change action is not its legal responsibility under human rights law.
“The government’s lawyers also rejected arguments that climate impacts were being felt today, and that effects constituting a human rights violation are yet to be suffered”.
…Read more: https://www.theguardian.com/australia-news/2020/aug/14/australia-asks-un-to-dismiss-torres-strait-islanders-claim-climate-change-affects-their-human-rights
The Australian lawyer’s argument is a fascinating development in climate litigation.
Up until now, the few climate court cases where activists won the case, such as the Netherlands CO2 emissions case, appear to have been because the courts treated climate model predictions as established fact, even though they concern events which have not yet happened. As far as I can tell, the Netherlands courts were able to rule in favour of climate litigants because of the climate certainty expressed by the Netherlands government and the European Union. The courts accepted the defendants own statements that climate change was a problem as evidence.
By arguing for the inadmissibility of claims based on events which have not yet happened, Australian lawyer Sophie Marjanac is attempting to restore a measure of sanity to the climate litigation legal landscape. Even if we accept IPCC science at face value, the lower bound of IPCC climate predictions to date is a climatic non event. Official climate science does not predict certain doom.
COP27, scheduled for November 2021, may be a turning point for climate litigants. If COP27 revises the lower bound of climate model predictions substantially above previous long term lower bound estimates of 1.5C / doubling of CO2, climate litigants might be able to use unwise statements by politicians affirming their absolute support for IPCC science to sue the pants off their respective governments. An upwards revision is a real possibility.
But if the lower bound estimate stays at 1.5C, it will remain very difficult for climate litigants to convince courts to treat uncertain predictions of future climate catastrophe as an established fact.