By Scott Walker
On 7 April 2022 the globe marks World Health Day and this year’s theme —’Our Planet, Our Health’—draws attention to ‘the single biggest threat facing humanity … [t]he climate crisis’. Australians need no reminders about the already devastating impacts of climate change with record-breaking floods having recently displaced thousands and the 2019-2020 Black Summer bushfires scarred into our memory.
The present moment demands incisive action on climate change. In the face of limited action by the Australian Government to address climate change, Australians have turned to the courts to hold the government accountable. Last year, in Sharma v Minister for the Environment Justice Bromberg of the Federal Court of Australia held that the federal Minister for the Environment owed Australian children a duty of care to prevent harm caused from climate change. The Minister appealed that decision and on 15 March 2022 the Full Federal Court of Australia overturned Justice Bromberg’s decision and found unanimously that the duty of care was not established.
Much has already been written about the implications of the Sharma appeal, but what does Sharma mean in the context of the human right to a healthy environment and how can a human rights-based approach achieve climate action?
The human right to a healthy environment
In October 2021, the United Nations (UN) Human Rights Council passed Resolution 48/13 recognising the human right to a clean, healthy and sustainable environment. The resolution passed the with 43 votes in favour and four abstentions (Russia, China, India, and Japan). While Australia is not a current member of the Human Rights Council and so did not vote on the resolution, Australia has been notably silent in its response.
This recognition of a human right to a healthy environment—albeit in the form of a ‘soft law’ resolution by the Human Rights Council—builds upon the widely recognised view in international human rights discourse that climate change is a human rights issue. Plainly put, the Human Rights Council’s resolution recognises that a healthy environment is fundamental to the enjoyment of all other human rights, and that the enjoyment of human rights is interrelated and interdependent on the existence of a clean, healthy and sustainable environment.
Australian human rights law: insufficient protection
International law is not automatically part of Australia’s domestic law and unless it is ‘transformed’ through legislation passed by the Federal, State or Territory Parliaments, international human rights law—including the human right to a healthy environment—is not enforceable domestic law. This means that holding the Australian Government to account for action on climate change through reliance on the human right to a healthy environment is somewhat complicated.
Australia does not have either a stand-alone legislated or constitutionally enshrined national human rights instrument. This is despite previous national inquiries recommending the enactment of a federal Human Rights Act and a growing civil society campaign (supported by the Castan Centre for Human Rights Law) calling for such protection. While some human rights are currently protected in a piecemeal manner through legislation, the right to a healthy environment is not recognised in Australia’s federal domestic law. Three of the eight States and Territories of Australia (the Australian Capital Territory, Victoria, and Queensland) have stand-alone legislated human rights instruments. However, none of these Human Rights Acts recognise a right to a healthy environment.
Enforcing the human right to a healthy environment against the Australian Government is therefore largely confined to enforcement mechanisms based on cooperation and dialogue through the UN. One such mechanism is the Universal Periodic Review (UPR) process. The UPR is overseen by the Human Rights Council and reviews UN member States’ domestic human rights records and makes recommendations in relation to the protection and realisation of human rights approximately every four-and-a-half-years. Australia last went through the UPR process in January 2021. Another avenue that exists to hold States to account for their human rights failings is through the UN treaty bodies. The treaty bodies oversee compliance with human rights treaties through regular reporting obligations and some human rights treaties also provide an optional process through which individuals can bring complaints (known as ‘communications’) to treaty bodies alleging violations of international human rights obligations when all domestic remedies have been exhausted. For example, in 2020 a group of eight Torres Strait Islanders lodged a communication with the UN Human Rights Committee over the Australian Government’s failings to address climate change impacts in the Torres Strait Islanders. The Human Rights Committee’s views are pending.
Holding non-State actors, such as multinational fossil fuel companies, accountable for the human rights impacts they cause is another difficulty. This is because human rights obligations are conceived as being borne by States and while the UN has mechanisms for supervising States’ compliance with human rights obligations, such mechanisms are limited in respect of non-State actors. While work is currently underway towards a binding international convention on businesses and human rights, with some recent modest developments, businesses’ responsibility to respect human rights is currently governed at an international level through the UN Guiding Principles on Business and Human Rights (the Ruggie Principles) which were endorsed by the Human Rights Council in 2011. Among other important matters, the Ruggie Principles recognise that States have an existing duty to protect people against human rights violations by businesses; that corporate responsibility to respect human rights includes a requirement to avoid infringing human rights through business practices; and that there needs to be greater access to an effective remedy for victims of human rights violations at the hands of businesses.
An international perspective
More than 100 States have enacted legislation recognising the right to a healthy environment. Regional human rights systems also recognise the human right to a healthy environment, including the African Charter on Human and Peoples’ Rights (Article 24), the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Article 11(1)), and the European Court of Human Rights has repeatedly recognised the right to a healthy environment arising from other rights protected by the European Convention on Human Rights (ECHR)
One example of the potential of human rights protection of a healthy environment in climate litigation is the 2020 decision of the Supreme Court of the Netherlands in Netherlands v Urgenda Foundation. In this decision, the Netherlands Supreme Court relied, among other sources, on the Netherlands’ human rights obligations to protect the right to life and the right to family life under Articles 2 and 8 of the ECHR to recognise the State’s duty to protect residents form climate change and the Netherlands’ obligation to reduce its greenhouse gas emissions by at least 25 per cent by the end of 2020.
Imagine what the Federal Court might have decided if Australia had the same national human rights protections as the Netherlands.
What is to be done?
Our lives and our health are inextricably linked to our natural environment – climate change threatens this. A human rights-based approach to climate change has the potential to centre our nation’s climate change response on those most directly impacted by climate change—First Nations people, persons experiencing homelessness, and persons living in rural and remote communities—empowering them to participate in decision-making and the formulation of laws, policies, and practices to address climate change. This moves beyond seeing individuals on the frontline of climate change as victims of a hostile world, but as autonomous human rights-bearers demanding the protection and realisation of their human right to a healthy environment. Not least, a human rights-based approach to climate change encourages a meaningful conversation about the importance of a healthy environment in all aspects of our lives and provides mechanisms to reckon with the exploitation of our natural world and to hold accountable governments who squander our chances at mitigating the effects of climate change.
Update: Since the time of writing, the Intergovernmental Panel on Climate Chance (IPCC) has released the third part of its Sixth Assessment Report, Climate Change 2022: Mitigation of Climate Change. The IPCC’s latest report makes it clear that urgent action by policymakers is needed to prevent the worst effects of climate change. The IPCC’s Summary for Policy Makers notes that ‘[c]limate-related litigation … is growing … and, in some cases, has influenced the outcome and ambition of climate governance’. The full potential for climate litigation in Australia to shape climate governance and demand governments to act on climate change is yet to be seen.
Scott Walker is a Researcher at the Castan Centre for Human Rights Law, a Researcher and Fellow at Eleos Justice and a Research Assistant in the Faculty of Law, Monash University. Scott’s research interests span international human rights law, health law, and disability rights. He is particularly interested in economic, social, and cultural rights and the domestic implementation of human rights law.