In Praise Of King Canute

Michael Kile                                                                                                              

At first glance there would appear to be no connection between an ancient monarch, a small island nine kilometres south of Papua New Guinea and 160 kilometres north of Cape York, and a decision taken at the Palais Wilson in Geneva last month.

As for the monarch, William Makepeace Thackeray (1811-1863) wrote a poem about him.

Might I stay the sun above us, good sir Bishop?” Canute cried;

“Could I bid the silver moon to pause upon her heavenly ride?

If the moon obeys my orders, sure I can command the tide.

“Will the advancing waves obey me, Bishop, if I make the sign?”

Said the Bishop, bowing lowly, “Land and sea, my lord, are thine.”

Canute turned towards the ocean—”Back!” he said, “thou foaming brine.

“From the sacred shore I stand on, I command thee to retreat;

Venture not, thou stormy rebel, to approach thy master’s seat:

Ocean, be thou still!  I bid thee come not nearer to my feet!”

But the sullen ocean answered with a louder, deeper roar,

And the rapid waves drew nearer, falling sounding on the shore;

Back the Keeper and the Bishop, back the king and courtiers bore.

Even King Canute, however, would be challenged today. We live in a world where hubris reigns supreme. Too many folk believe they can control Nature. Some are conjuring serious money out of her variability. Others are shedding tears, obsessed with “saving the planet”. As for modern monarchs, they are more likely to applaud than expose the biggest racket of our time: gaming the climate.

That said, had everyone at the United Nations read Thackeray’s poem, it of course would not have changed the agency’s rampant alarmism. It would not have reduced its determination to use every avenue to push a loss and damage agenda, “unlock capital for climate action” and grow the Green Climate Fund.

Consider the ground-breaking decision by the U.N. Human Rights Committee (UNHRC) on September 23, 2022.  It found that:

 Australia’s failure to adequately protect indigenous Torres Islanders against adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home.

The Committee today issued its Decision after examining a joint complaint filed by eight Australian nationals and six of their children. They are all indigenous inhabitants of Boigu, Poruma, Warraber and Masig, four small, low-lying islands in Australia’s Torres Strait region. The Islanders claimed their rights had been violated as Australia failed to adapt to climate change by, inter alia, upgrading seawalls on the islands and reducing greenhouse gas emissions.

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. (UNHRC Committee member: Hélène Tigroudja)

The Devil, dear reader, lurks not in “climate change”, but in the detail. The 59-page UNHRC Committee’s Decision is a fascinating document. Here for all to see are the tricks of the trade: the turgid rhetoric, the quasi-legal tone, the dodgy conclusions and circular arguments (circulus in probando): A is true because B is true; B is true because A is true.

The premises of this intriguing case, which began on May 13, 2019, are surely as much in need of investigation as the Committee’s conclusions. For example, is a “safe climate” – whatever that is – really a “matter of fundamental human rights” (para. 3.1, page 3, UNHRC Decision)? Can such a climate somehow be created in reality and protected by a country (State)?

Yet the Committee was emphatic: “The State party’s obligations under international climate change treaties constitute part of the overarching system that is relevant to the examination of its violations under the Covenant” (para. 3.2, page 4).

The UN Commission or Council on Human Rights and Human Rights Committee are separate agencies. The former has 47 so-called Member States. Selection is not based on track record but “equitable geographical distribution”: Africa (13 seats), Asia-Pacific (13 seats), Latin America and Caribbean (8 seats), Western Europe and other States (7 seats), and Eastern Europe (6 seats). Hence the Council currently includes China, Pakistan, Cuba, Venezuela, Libya, Sudan, Qatar and the United Arab Emirates.

The Committee’s task: to “monitor States parties’ adherence to the International Covenant on Civil and Political Rights, which to date has been ratified by 173 States parties.” We are told it is “made up of 18 members who are independent human rights experts drawn from around the world, who serve in their personal capacity and not as representatives of States parties.”

Yet the Committee seems to have real power: “the Optional Protocol to the International Covenant on Civil and Political Rights allows individuals to file complaints against the 117 States parties to the Optional Protocol for violations of their rights enshrined in the Covenant. The Optional Protocol imposes on States parties the international legal obligation to comply in good faith with the Committee’s views.”

As Keith Windschuttle reminded readers last month, international law is not decided by parliaments.

Much of it is the prod­uct of the United Nations’ Human Rights Council and other trans­national quasi-judicial and human rights organisations, as well as academic law professors, legal philosophers, interna­tional relations advisers, and judges on international tribunals. Most have been appointed to their positions by like-minded offi­cials and thinkers, that is, it is a self-reproducing network. (Quadrant, September 28, 2022)

The following Committee members examined the “joint complaint”: Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan, Mahjoub El Haiba, Shuichi Furuya, Carlos Gomez Martinez, Marcia V.J. Kran, Duncan Laki Muhumuza, Photini Pazartzis, Hernan Quezada Cabrera, Vasilka Sancin, José Manuel Santos Pais, Chongrok Soh, Kobaujah Tchamdja Kpatcha, Hélène Tigroudja, Imeru Tamerat Yigezu and Gentian Zyberi. Six Committee members gave Individual opinions: Duncan Laki Muhumuza, Arif Bulkan, Marcia V. J. Kran, Vasilka Sancin, Carlos Gomez Martinez, Hernan Quezada Cabrera and Gentian Zyberi.

Daniel Billy et al., the Torres Strait Islands group described as the “authors” and “alleged victims” – were represented by ClientEarth, a group of “lawyers, scientists and policy experts with unrivalled environmental expertise”. ClientEarth is registered in the UK as an “environmental charity”. It has offices in London, Beijing and the USA.

The so-called “facts as submitted by the authors” and outlined in their Complaint, contain statements so critical of Australia’s policies on reducing global greenhouse gas emissions an impartial observer might conclude it was not necessarily all their own work. For example:

The State party has also failed to mitigate the impact of climate change. In 2017, the State party’s per capita greenhouse gas emissions were the second highest in the world. Those emissions increased by 30.72% between 1990 and 2016. The State party ranked 43rd out of 45 developed countries in reducing its greenhouse gas emissions during that period. Since 1990, the State party has actively pursued policies that have increased emissions by promoting the extraction and use of fossil fuels, in particular thermal coal for electricity generation. (para. 2.8, page 3)

As for the old per capita trick, one relevant fact they might have included: Australia’s share of global greenhouse gas emissions is 1.18%, one of the lowest in the world.  The Decision was also silent on what rights the country’s population of 25 million people may have to future prosperity.

The unnamed defenders of the State (Australia) mounted an impressive – albeit unsuccessful – defence. Whoever they are, they deserve recognition. Two examples:

 The authors have not substantiated their claim that they are victims of violations within the meaning of article 1 of the Optional Protocol. There is no evidence that the authors face any current or imminent threat of a violation of any of the rights they invoked. Moreover, the authors have not shown any meaningful causation or connection between the alleged violations of their rights and the State party’s measures or alleged failure to take measures. To demonstrate victim status, the authors must show that an act or omission by the State party has already adversely affected their enjoyment of a Covenant right, or that such an effect is imminent. By their own admission, the authors have not met that test. It is not possible, under the rules of State responsibility under international law, to attribute climate change to Australia. Relying on the Committee’s position in Teitiota v. New Zealand, the State party asserts that the authors invoke a risk that has not yet materialized. (para. 4.2, page 5)

The authors’ claims are also without merit. None of the alleged failures to take mitigation measures fall within the scope of the Covenant. It is not possible under international human rights law to attribute climate change to the State party. As a legal matter, it is not possible to trace causal links between the State party’s contribution to climate change, its efforts to address climate change, and the alleged effects of climate change on the enjoyment of the authors’ rights.  

They quoted from a 2009 report from the UN High Commissioner for Human Rights on the relationship between climate change and human rights (A/HRC/10/61), para. 70). The UNHCHR itself had stressed:

that “it is virtually impossible to disentangle the complex causal relationships linking historical greenhouse gas emissions of a particular country with a specific climate change-related effect, let alone with the range of direct and indirect implications for human rights,” and that “it is often impossible to establish the extent to which a concrete climate change-related event with implications for human rights is attributable to global warming.” (para 4.3, page 5)

Furthermore:

Academic scholars have noted that “causal pathways involving anthropogenic climate change, and especially its impacts, are intricate and diffuse,” and that human rights law “cannot actually address the depth and breadth of the causes and impacts of climate change.” A threat that is not attributable to a State cannot be ensured or protected by that State where such protection cannot be achieved by the State alone. (para. 6.9, page 9) 

The Committee, however, rejected Australia’s defence. It had made up its collective mind.

With respect to article 24 of the Covenant, the principle of intergenerational equity places a duty on current generations to act as responsible stewards of the planet and ensure the rights of future generations to meet their developmental and environmental needs. The remedies requested by the authors are reasonable and proportionate. (para. 5.8, page 8)

The Decision contains five Annexes from various Committee Members. In Annex I, Duncan Laki Muhumuza’s “individual opinion” claimed there had been, “an appalling outcry from the authors that has not been addressed and hence, the authors’ right to life will continue to be violated and their lives endangered” (para. 9, Annex 1, page 18). The State party, Australia, had failed to take “precautionary measures” to “prevent a foreseeable loss of life from the impact of climate change” (para.10, page 18).

Furthermore, “the State Party has not taken any measures to reduce greenhouse gas emissions and cease the promotion of fossil fuel extraction and use, which continue to affect the authors and other islanders, endangering their livelihood, resulting in the violation their rights under article 6 of the Covenant” (para. 11, page 18). And so on and so forth.

Accordingly, I find that there is a violation of Article 6 and as a Committee, we should implore the State Party to take immediate measures to protect and preserve the lives of the people at Torres Strait Islands. In order to uphold the right to life, States must take effective measures (which cannot be undertaken individually) to mitigate and adapt to climate change and prevent foreseeable loss of life. (para.17, page 19).

The “Joint opinion by Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin (partially dissenting)” in Annex III noted that:

The authors detail flood related damage, water temperature increases, loss of food sources, and most importantly, explain that the islands they live on will become uninhabitable in a mere 10-15 years according to the Torres Strait Regional Authority (TSRA), a governmental body. Together, this evidence provides “a reasonably foreseeable threat” constituting a violation of article 6.

In a kangaroo court, the outcome is generally predictable: the parties are mere pawns in a bigger game. Did the UNHRC Committee want a “ground-breaking decision” more than due process? Did it set out to create a precedent, however dubious, one that would allow – perhaps encourage – “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”? Did it put the UN cart before the climate donkey, or vice versa?

Whatever the case, a “real and foreseeable risk” argument, however subjective, is seductive, especially when combined with the UN’s hallowed “precautionary” mantra.

State parties must duly consider the precautionary approach on climate change.  Given the urgency and permanence of climate change, the need to adhere to the precautionary approach is imperative. (para. 4, page 23)

One can only speculate, but how could the Committee be unaware that Australia’s government changed months before the release of its Decision? Indeed, the country now has “more ambition” on climate change. It has been trumpeting a new Paris Agreement commitment since mid-June this year: to reduce its carbon dioxide emissions by 43 per cent by 2030 and to achieve net zero emissions by 2050.

The Committee presumably should have known about it: the date of its “adoption of Views” was 21 July 2022. After all, the very “subject matter” of the case was our alleged “failure to take mitigation and adaptation measures to combat the effects of climate change”.

As for the Torres Strait Island residents, perhaps the Committee was so preoccupied with genuine human rights violations elsewhere that it missed this article in the National Indigenous Times of April 4, 2022: “Boigu Island seawall safeguards Torres Strait community from climate change”

A one kilometre seawall built on Australia’s northernmost inhabited island will mitigate coastal inundation to better protect a remote community from rising sea levels and severe weather events.

“It’s a wonderful example of what can be achieved through the collaboration of all levels of government,” said Torres Strait Regional Authority chairman Napau Pedro Stephen.

The $15 million Boigu Island project (see before-and after-photos) is part of “a $40 million program of coastal protection works across five islands in the region.” An impartial observer might conclude such action was an appropriate “adaptation” measure.

Such an observer also might conclude: that if Australia accepts the Committee’s Decision and its creation of a “pathway for individuals to assert claims” – as in the case of Daniel Billy et al, the eight Australian nationals and six of their children – then we should expect billions of other people to be walking along it quite soon and seeking compensation on the same bogus pretext.

Let King Canute have the last word. Thackeray’s poem ends with this verse:

And he bade them never more to kneel to human clay,

But alone to praise the laws that earth and sea obey:

And his golden crown he never wore from that day.

King Canute is dead and gone:  Parasites exist alway.

This article was posted in Australia at Quadrant Online on October 4, 2022.

Michael Kile      1 October 2022

Boigu Island, Torres Strait: Boigu Seawall

Photos: National Indigenous Times , April 4, 2022