Article by Martin Neira,
As mentioned in my previous article, there has been a surge in international HR and environmental litigation in front of national courts from well-developed legal systems. Accompanying this has also been growing interest in litigating climate change in international fora, including the International Court of Justice (ICJ). The ICJ has decided a number of environmental disputes in the past, including the Whaling in the Antarctic Case, in which Australia successfully challenged the legality of Japan’s whaling program in the Southern Ocean. Other environmental cases in the ICJ have not been as successful, such as the Nuclear Tests Cases brought by Australia and New Zealand against France in the 1970s.
In a landmark claim submitted in May at the United Nations, the governments of Vanuatu and other Pacific Islands have been exploring how to request an ICJ advisory opinion on climate change. These governments argue that Australia, by failing to take adequate steps to reduce carbon emissions, has violated Indigenous Australians fundamental human rights, including the right to maintain their culture in the low-lying islands in the Torres Strait.
The action is part of a burgeoning movement in which litigants, including a group of 21 young people in the United States, have made the novel argument that governments face a fundamental duty to ensure a livable environment. But this is the first time an argument is brought to seek the weight of the United Nations behind such a climate claim, and it could set a precedent for how the populations most vulnerable to the effects of global warming can seek redress under international law. If successful, the case “would really break new ground internationally,” said John Knox, a professor of international law at Wake Forest University and a former special rapporteur on human rights and the environment to the United Nations.
While the United Nations cannot force Australia to take action, those leading the case say they hope it will apply pressure on governments around the world to protect the rights of marginalized citizens whose culture is tethered to a particular place.