The millions who stand to lose their homes from climate change are potentially looking to the law for help. One Pacific island is threatening to take legal action on climate change, but in reality, how much protection can the law provide? Katherine McGrow investigates.

Tuvalu's intent to sue Australia and the US for their contribution to climate change could have marked the beginning of years of litigation. Picture: Stefan Lins.

Millions of people in low-lying islands stand to lose their homes and native lands as a result of climate change. Both international and domestic laws have the potential to protect the people who have been dubbed ‘climate refugees’, yet experts are sceptical that it has any real capacity to provide for them.

The Prime Minister of the low-lying Pacific nation of Tuvalu, Apisai Ielemia, seems to think it might be an option. In a report recently released by Oxfam Australia he was quoted as saying, “For a highly vulnerable country like Tuvalu, we cannot just sit back and watch our homeland slowly disappear. If necessary, we will use whatever legal means available to us to seek the necessary restitution for all damages created by climate change. Hopefully, the international community will respond before such action is necessary. But time is running out fast.”

Previously in 2002, Tuvalu, under the Koloa Talake administration, threatened to sue Australia and the United States in the International Court of Justice for their contribution to climate change. Lawyers and NGOs worldwide, including the Australia Institute said that this could mark the beginning of years of litigation against greenhouse polluters. However, the government under Saufatu Sopoanga dropped all consideration of taking legal steps.

In 2005, the Inuit in the Arctic region of Alaska and Canada filed a petition with the Inter-American Commission on Human Rights “Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States.” But the Inter-American Commission deemed the case inadmissible.

The question is why has a possibility that sparked so much discussion and speculation amongst lawyers, activists and legal scholars worldwide, suddenly fallen flat?

Dr Jane McAdam, Associate Professor in the Faculty of Law at the University of NSW, says that the problem comes with establishing state responsibility. “You need to be able to show specific causation and to talk about impacts of climate change – sure we know what has caused it – but to actually litigate on that basis and show that particular countries are responsible for particular forms of harm is very difficult,” she said.

Dr McAdam doesn’t think litigation is the answer to climate change. “I think it’s actually a very lengthy, expensive and ultimately futile process,” she said.

According to the Australian Human Rights Commission, as a signatory to international human rights agreements, Australia is obliged to consider climate change in a human rights context and act accordingly.

Leading human rights lawyers in Australia say fulfilling these human rights obligations means avoiding harmful emissions. In a December 2008 letter to Kevin Rudd, they urged him to set a target of 40% reduction in emissions by 2020.

Australia’s climate change efforts have already been criticised by the UN, this time for non-compliance with another human rights agreement, the International Covenant on Economic, Social and Cultural Rights.

“The Committee is concerned at the negative impact of climate change on the right to an adequate standard of living, including on the right to food and the right to water, affecting in particular Indigenous peoples, in spite of the state party’s recognition of the challenges imposed by climate change,” the May 2009 report said.

Unfortunately, human rights agreements which exist in international law have no binding force unless they are incorporated into Australian law. Currently, Australia has no Legal Rights Act.

Owen Cordes-Holland from Australian National University has studied the potential for litigation under international human rights law as an option for Torres Strait Islanders.

According to the latest report from the Intergovernmental Panel on Climate Change, if dangerous levels of climate change are not avoided, up to 2000 of the 7000 people living on the Torres Strait Islands are ‘likely’ to be displaced to the Australian mainland later this century.

“To them that’s an enormous issue because their culture is so connected to the environment,” says Cordes-Holland.

“[The International Covenant on Civil and Political Rights] has an optional protocol under which citizens can make complaints and Australia has ratified the optional protocol,” he says.

As such, unless the Australian Government could be shown to be adequately addressing emissions in Australia, Torres Strait Islanders might be able to submit a complaint to the UN Human Rights Committee on the basis that losing their traditional land as a result of climate change affects their right to life; the right to protection of privacy, family and the home; the right to freedom of residence and movement; and the right to self-determination.

In international law, those displaced by climate change are not recognised as a group with defined rights or as a group in need of special protection.

People displaced by climate change have regularly been referred to as climate refugees. According to Olivia Dun, who is working with the United Nations University Institute for Environment and Human Security, this has mainly been to create a public profile for the issue. But actually, these people do not fall within the 1951 Refugee Convention definition of ‘refugee’ and therefore do not have the same legal rights.

So lawyers and campaigners are increasingly turning to human rights legislation as a possible approach for climate change victims.

“It is clear that international law is not yet equipped to respond adequately to the diverse causes of climate-induced migration,” says the Human Rights Commission report. “Yet given the numbers, the question of the rights of displaced populations to a form of protection from receiving countries will become unavoidable.”

Some people have argued for using a novel form of the “polluter pays” principle in relation to the issue of climate change migrants. Countries would be expected to take a number of migrants in proportion to their emissions. If the US is responsible for around 30 per cent of emissions, for example. It would therefore be responsible for accepting around 30 per cent of migrants.

This could also be applied to the monetary costs associated with climate change. It has been argued that the costs of adaptation should not be borne exclusively by the low-emitting countries suffering the effects of climate change but by those responsible for causing it.

In a paper written with Dr Ben Saul for the Sydney Centre for International Law, Dr McAdam says that focussing on ‘human security’ aspects of climate change displacement may be an alternative way to help mobilise international action.

This approach, they caution, does carry its own risks, with potentially controversial implications for migration and border control in receiving States.

But despite a lack of definitive research, the link between climate change and security is gaining credibility.

On June 3, a non-binding resolution was passed by the UN General Assembly recognising, for the first time, the possible implications of climate change for international peace and security. This could help put climate change on the agenda of the more powerful UN Security Council.

And here in Australia, the Government is already planning its response to security issues arising as a result of climate change.

The Australian Federal Police Commissioner, Mick Keelty, has already predicted that cultural tensions resulting from forced climate migration are going to be the policing issue of the 21st century.

The recent white paper released by the Federal Defence Department acknowledges the pressure that some South Pacific nations will be placed under as a consequence of climate change. It goes on to say that if mitigation and economic assistance strategies fail, “the Government would possibly have to use the ADF [Australian Defence Force] as an instrument to deal with any threats inimical to our interests.”

What is apparent is that there is a double standard here. It appears that while border security and defence measures are already being considered, the Government continues to stall in creating adequate legal restraints on the real perpetrators of the issues, allowing polluting industries to carry on at the expense of neighbouring Indigenous communities.