The Sinking of the Strait: The Implications of Climate Change for Torres Strait Islanders' Human Rights Protected by the ICCPR

By Cordes-Holland, Owen | Melbourne Journal of International Law, October 2008 | Go to article overview
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The Sinking of the Strait: The Implications of Climate Change for Torres Strait Islanders' Human Rights Protected by the ICCPR


Cordes-Holland, Owen, Melbourne Journal of International Law


[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.

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