Human Rights and Climate Change, who cares? Australians do!

When you think of climate change, have you ever considered how the topic could be a human rights issue?

Probably not. After all, it is human beings that  have damaged (and in some cases continue to damage) the environment. So, shouldn’t the focus be on protecting the environment, not the species that is leading to its destruction? Well…yes and no.

Recently, the United Nations Human Rights Council (UNHRC) recognised that having a clean, healthy and sustainable environment is a human right (Human Rights Council, 2021), calling upon UN Member States to cooperate in the implementation of this right. The development extends off historical attempts to develop a rights-based approach to climate change. The first, the Stockholm Declaration in 1972, which aimed to preserve and enhance the human environment, by ensuring a life of dignity and well-being. Then, the Rio Declaration (1992) transformed this understanding to include how human beings can achieve this form of dignity through sustainable development, which encourages healthy and productive life in harmony with nature. The Paris Agreement (2015) also included within its Preamble that human caused climate change is a common concern of humankind, requiring parties in addressing climate change to respect, promote and consider their respective obligations to human rights. More recently, the Glasgow Climate Pact has had parties to the COP26 conference acknowledge that in responding to climate change, consideration of human right obligations to health should be made. Even more recently, the appointment of Ian Fry as UN Special Rapporteur on the promotion of human rights in the context of climate change, demonstrates that movement in a positive direction continues.

The UNHRC’s recognition of the right to having a clean, healthy and sustainable environment is not legally binding as it is yet to be given formal recognition by the United Nations General Assembly, yet, it is a key movement in the right direction (pardon the pun).

Arguably, this right acts as a fundamental basis for all other human rights, because without a clean, healthy and sustainable environment, humanity cannot exist(Knox and Boyd, 2018).

This brings humanity’s civic, cultural, political, economic and social rights into consideration when responding to climate change and is ultimately necessary to ensure that our movement towards ‘net zero’ is a ‘just transition’ (Orellana, 2018). Simply put, it means that by grounding our response to climate change through a rights-based lens, the existing complexities of human society are considered. As a contemporary example, human rights violations in the manufacturing of renewable energy technologies in regions such as Xinjiang China (use of Uyghur forced labour in solar panel manufacturing) has emerged. 

The reason a rights-based approach is advocated by the United Nations in relation to climate change is therefore simple. It is to place a duty upon Member States to ensure full realisation of the right. What does this mean? Nations should protect the human rights in their respective jurisdictions. Yet, in the context of the member state down under, also known as Australia, a laggard approach to climate change persists.

Australia has ranked: 56 out of 62 countries in the Climate Change Performance Index (2020);

74 out of 180 countries on sustainability measures in the global ‘child flourishing’ index (2020); and

Last in the world for climate action as part of the United Nations Sustainable Development Goals.

The Paris Agreement (2015) has seen Australia pledge to reduce greenhouse gas (GHG) emissions by up to 28% by 2030, yet, this has been ruled as insufficient in ensuring global temperatures do not rise above 1.5°C(Intergovernmental Panel on Climate Change, 2021). In 2020, former Prime Minister Scott Morrison reiterated no inclination to alter these targets and in fact has initiated a ‘gas-led recovery’ due to the resulting lower GHG emissions caused by the COVID-19 pandemic (Morton 2020). On the other hand, human rights have also had ‘a complicated and politicised history’ within Australia. Australian historian Jon Piccini (2019, p. 5) identifies that whilst Australia provided the world with the eight-hour working day, was labelled the working person’s paradise and attracted workers from around the world, it has also been home to some of the world’s most racist immigration restrictions. Further to this, whilst Australia was one of the first nations to grant white women full suffrage in 1902, it did not achieve the same for Indigenous women for another sixty years (Wright, 2014, pp. 12-36). 

Australia also played a central role in the development of rights at an international level with the nation being a founding member of the United Nations with the then Attorney General of Australia Dr. Herbert Vere Evatt helping draft the Universal Declaration of Human Rights and eventually becoming President of the United Nations General Assembly in 1948. Despite this, Australia has failed to include constitutional or legislative guarantees of the rights of its people. Current sentiments pertaining to the Australian Federal Government’s view of rights can be summarised by the then Liberal Party Prime Minister, Tony Abbott, who in 2015 declared Australians to be ‘sick of being lectured to by the United Nations’ (ABC News, 2015).

However, while the Australian federal government may not be interested in the concept of human rights – this is not necessarily the sentiments shared by Australian citizens. We see this dichotomy manifest particularly in litigation. Take for example the case of Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560. Here, eight teenagers have taken it upon themselves to remind Australia the duty its politicians owe them. Led by Anjali Sharma, and litigation guardian Sister Marie Brigid Arthur, the team have argued that the decision of former Federal Minister for the Environment Sussan Ley to expand a coal mine in Gunnedah run is invalid. The expansion is estimated to produce an additional 100 million tonnes of carbon dioxide. The children litigating against the expansion have argued that they are owed, by the Federal Minister of the Environment, a duty in the common law of negligence to exercise their legislative powers with reasonable care as to not cause them harm. The Court initially found in favour of Sharma - that a duty of care in negligence is owed, Justice Bromberg held that it was reasonably foreseeable that a person in the Minister’s position would foresee that the children were exposed to the risk of death or personal injury due to the added effect the proposed mine would create in relation to climate change. Whilst the contribute to carbon emissions was ‘tiny’, the risk of harm was ‘real’ and ‘no far-fetched or fanciful’.

But quite recently, the Federal Court handed down an appeal decision, which unanimously held the view that a duty should not be imposed upon the Environment Minister to protect children from climate change. While the threat of climate change was not disputed (rightfully so!), the Court found that it could not impose the duty because of the limiting application of the law and the way it works (or doesn't) to protect the environment. 

While this case does not discuss the idea of human rights explicitly, the notion of the Environment Minister having a ‘duty of care’ can certainly be likened to the duty member states of the United Nations have in relation human rights. The general notion of having a duty to care for others comes from the legal area known as tort law. Essentially, the idea is that people (i.e. individuals, corporations, governments and even Environment Ministers) should consider the impact of their own actions on those around them, reasonably foreseeing how they could harm others. When we consider why the idea of a duty of care exists, it is grounded in the protection of the well-being of each individual. In a similar fashion, the purpose of human rights is based in the notion of the ‘inherent dignity…of all members of the human family’ (Universal Declaration of Human Rights). Therefore, what we see emerge is an interplay between this ‘duty of care’ and the duty Member States have to uphold human rights. Yet when we think about the Sharma case, despite relentless effort, we have not been afforded clear protection of our human rights in the context of climate change - the government is simply not required to be held accountable for its inaction. 

This should make you angry.

Angry that a nation, where news of bushfires, droughts, floods have become the norm, the Australian federal government maintains that a duty of care in relation to climate change is not owed to its citizens. The result of the recent Australian federal election reflects this desire for decisive action on climate change where a glow of red, teal and green filled Australia’s screens and ballot papers. And while the newly formed government has assured of stronger climate policy, very limited discourse on the protection of Australia’s human rights in the context of climate change continues. Without explicit indication that action on climate change is grounded in the protecting the dignity of humanity and our environment, we should tread cautiously when listening to the promises of our newly elected officials. 

Because of this, it becomes more important than ever for climate change to be discussed as a human rights issue. Nations like Australia, which fail on various human right accounts, should approach their climate change policy through a rights-based approach. By doing this, not only will our right to a clean, healthy and sustainable environment be protected, but it will also catalyse a much needed broader human rights discourse. This is why advocacy for human rights protection is needed more than ever – to ensure our people, our planet and our future are granted the dignity we deserve.

Human Rights Council, The human right to a safe, clean, healthy and sustainable environment, UN Doc A/HRC/48/L.23/Rev.1

Stockholm Declaration on the Human Environment, UN Doc A/CONF.48/14/Rev.1 (1972).

Rio Declaration on Environment and Development, 31 ILM 874 (1992).

Conference of the Parties, Adoption of the Paris Agreement, UN Doc FCCC/CP/2015/L.9/Rev/1 (12 December 2015)

‘Climate Change Performance Index’, Climate Change Performance Index 2020 (Online Report) <https://www.climate-change-performance-index.org/>

Helen Clark et al, ‘A future for the world’s children? A WHO-UNCIEF-Lancet Commission’ (2020) 395(10224) The Lancet 605, 634

Michael Mazengarb, ‘Australia ranked dead last in world for climate action in latest UN report’ (1 July 2021) Renew Economy, <https://reneweconomy.com.au/australia-ranked-dead-last-in-world-for-climate-action-in-latest-un-report/>

Intergovernmental Panel on Climate Change, Valerie Masson-Delmotte et al, IPCC, 2021: Summary for Policymakers. In: Climate Change 2021: The Physical Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC AR6 WGI, 7 August 2021

Adam Morton, ‘Scott Morrison’s ‘gas-led recovery’: what is it and will it really make energy cheaper?’ (17 September 2020) The Guardian

Jon Piccini, Human Rights in Twentieth-Century Australia (Cambridge University Press, 2019) 5

Marilyn Lake and Henry Reynolds, Drawing the Global Colour Line: White Men’s Countries and the Question of Racial Equality (Melbourne University Press, 2008) ch 6

Clare Wright, “‘A Splendid Object Lesson’: A Transnational Perspective on the Birth of the Australian Nation”’, (2014) 4 Journal of Women’s History 26, 12–36

Hilary Charlesworth et al, No Country is an Island: Australia and International Law (University of New South Wales Press, 2006) 66 (‘No Country is an Island’)

Herbet V. Evatt, ‘Untitled draft of a speech concerning the outcomes of the Third General Assembly of the United Nations’ (Speech, Australian Federal Government), <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/EFMA6/upload_binary/efma61.pdf;fileType=application%2Fpdf#search=%22human%20rights%201940s%20media%22>

Danuta Kozaki ‘Abbot says Australians ‘sick of being lectured by UN’, ABC (online, 9 March 2015) <https://www.abc.net.au/news/2015-03-09/tony-abbott-hits-out-united-nations-asylum-report/6289892?nw=0&r=HtmlFragment>