By Ashleigh McNeill
As the globe’s attention turns to Glasgow for the 26th annual United Nations Climate Conference (COP26), Australia’s climate approach increasingly lampoons us as the outcasts of the Pacific. Our Pacific Island neighbours emphatically demand climate action, yet Australia lags behind with inadequate emission reduction targets and an enduring commitment to a fossil fuel future.
While there are various analyses of this growing climate rift, the lead-up to COP26 has highlighted the distinctive role of climate litigation, and in particular, the empowerment and advocacy of young people in environmental legal affairs.
During his address to the United Nations General Assembly in September, Vanuatu’s Prime Minister Bob Loughman announced a campaign to bring climate justice to the International Court of Justice (ICJ). This was a resounding success for activist group Pacific Islands Students Fighting Climate Change, who have been campaigning on the matter since 2019. Vanuatu will call for an advisory opinion from the ICJ on the right to be protected from the effects of climate change on current and future generations. While not legally binding, an advisory opinion would be a significant global agreement that the impacts of climate change are a human rights imperative. The announcement by Vanuatu in the lead-up to COP26 continues a legacy of Pacific climate advocacy on the international stage and exemplifies leadership for the rights of young people.
By way of comparison, Australia has had success bringing international climate litigation to the ICJ, with an unprecedented victory against Japan on whaling in the Antarctic, and like their Pacific counterparts, young Australians are actively pursuing legal rulings on climate and their rights. Youth activists in the Pacific, however, seek to partner with their government and push for global momentum, while in Australia, young people are forced to bring legal proceedings against their own country to pressure apathetic leaders into action.
In May 2021 the Australian Federal Court determined that Environment Minister Sussan Ley has a ‘duty of care’ to protect young people from the harm produced by climate change. This coupling of human rights and climate change is the same driving force in Vanuatu’s ICJ campaign. Since the ruling, Minister Ley has launched an official appeal and approved three new coal mines within one month - a blatant signaling of the government's disinterest in upholding climate justice.
Yet despite the divergence of opinion between the governments of Vanuatu and Australia, their respective experiences of youth climate litigation are innately linked.
Firstly, Australia’s ‘duty of care’ ruling provides a favourable precedent for Vanuatu’s argument by providing a legal bind between the relationship of adverse environmental events and human rights.
Secondly, an advisory opinion must be sought by a consensus of the UN General Assembly. This requires international cooperation and advocacy in which Australia would be a significant and influential ally, building on knowledge from previous success at the ICJ. Importantly, Australia’s international standing would benefit from engaging in meaningful climate action, as argued in this open letter by a number of prominent former Australian diplomats.
Finally, any advisory opinion or outcome from Vanuatu’s ICJ campaign will impact on current and future climate litigation in Australia, including Minister Ley’s ongoing legal challenge.
Domestic and international litigation linking human rights and the environment are likely to compound as the effects of climate change steadily unfold. On the 25th of October, five young Australians aged 15-24 lodged complaints with the respective UN Special Rapporteurs for human rights and the environment, the rights of Indigenous people, and the rights of persons with disabilities, citing climate inaction. Young people – those most likely to experience the full, disastrous impacts of climate change – are demanding action. The Australian government should follow Vanuatu’s lead: listen to our concerns and work with us, not against us, towards a sustainable future.