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enhanced duties owed to vulnerable populations, such as women, children and indigenous peoples.8 Framework principles 9 on human rights and the environment establish three forms of rights: procedural rights such as access to information and to justice, substantive rights include protections from State actions that jeopardise the right to a safe climate, and special rights attaching to proactive actions in favour of vulnerable populations. Private actors as well as States have obligations in respect of human rights to a safe and healthy environment. Environmental rights are recognised by over 150 countries and more than 100 include these rights in their Constitutions. Australia does not. In the international sphere, a right to a safe climate has been articulated, based on State and private obligations to address dangerous climate change: ‘A safe climate is a vital element of the right to a healthy environment and is absolutely essential to human life and well-being.’10 A safe climate has the status of specific, if urgent and compelling, application of established human rights norms and human rights law. This expression of human rights law as encompassing the right to a safe climate enables climate advocacy, clarifies imperatives for State response to the crisis, and focuses human rights institutions on improving climate policy.11 It can be delivered through execution of accepted climate programs.12 We can say there is a right to a safe climate at the global level. The science indicates it must be linked to the ‘safe operating space for humanity’13 – that is, planetary limits and boundaries. We can thank the UN for expressing clearly, forcefully and succinctly that the basic democratic premises on which our society purports to function extend to urgent and rapid action on climate change.
By January this year the litigation proceeded to the point of judgment on whether the case met the constitutional criteria for it to be heard in the courts. It was not successful. By a 2-1 majority, it failed. Climate action, the majority held, was a matter for executive and legislative government – precisely those domains in which action had previously failed and continues to fail. The majority ‘reluctantly’16 held the matter was beyond the competence of the courts to decide. However, what is extraordinary about this litigation is, firstly, the Court of Appeal found entirely for the plaintiffs on the facts, i.e. that climate change is real, dangerous and imperils the present and future of those bringing the action. Secondly, the majority was patently sympathetic to the legal claims even if they found the complaint stretched the functions of the judiciary too far. Thirdly, the dissenting judge set out one of those judgments that may well ring in the ears of lawyers and policymakers for years to come. Opening her dissent, Judge Josephine Staton, resounds:
… the [Federal] government accepts as fact that the United States has reached a tipping point calling out for concerted response – yet presses ahead toward calamity… Seeking to quash this suit, the government bluntly insists it has the absolute and unreviewable power to destroy the Nation… Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s wilful destruction.17
A CONSTITUTIONAL FRAMEWORK The second nascent source of law tying the outcome of a ‘safe’ climate to legal conditions may be constitutional. What has opened up this question is litigation in the USA. In January 2020, 19 young US citizens and NGOs supporting them received judgement on whether they could put that Government on trial for failing to act on climate change. The plaintiffs in the Juliana litigation14 argue that Federal laws and policies supporting fossil fuel industries and failure to act on climate change imperil basic constitutional protection of their rights and freedoms. As their complaint set out: ‘Fundamental to our scheme of ordered liberty… is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO2.’15
HUMAN RIGHTS DEFENDER | VOLUME 29: ISSUE 3 – OCTOBER 2020
The extraordinary moment of Judge Staton’s opinion is that a superior US Federal Court accepts the scientific evidence put before it that climate change poses an existential threat to the Nation itself. She puts this on the footing that the US polity cannot countenance its own demise or destruction, a principle that goes back at least to the Civil War and which Lincoln used to wage war on the Confederacy. Where she departs from her colleagues is in this problem of accepted physical threat being susceptible of judicial solution. She accepts that it is. They do not. The procedural fight of the Juliana litigation is not quite over yet. Regardless of its fate, what this opinion does is set out a foundational question which even resonates in
