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CAN WE CONCEIVE OF THE RIGHT TO A SAFE ENVIRONMENT IN THE FACE OF CLIMATE CATASTROPHE? BRUCE LINDSAY Bruce Lindsay is a Senior Lawyer and Acting Director Advocacy and Research at Environmental Justice Australia.
We are in a time of hard truths. The biggest of these is climate change, or rather ‘dangerous anthropogenic interference with the climate system’1 so profound it is not merely on the verge of dangerous but catastrophic. This truth is supported by scientific consensus and increasingly by direct experience.
The spectacular failure of Australian domestic law and policy to respond meaningfully, if at all, to the climate crisis should not in my view deter us from agitating for change. Governments must direct national effort fully towards conditions of ecological safety, in order to walk back from the precipice to the extent that we still can.
In what ways should we have a right to feel safe from such a crisis? Moreover, do we have a right to objective conditions of safety and health, and can we call on the state to strive for those conditions? In Australia we confront a further hard truth, namely that government and society are notoriously averse to norms of rights, and certainly human rights, as a form of claim on the state. The tacit bargain of Australian government and ‘people’ is a democratic one, with a certain protective function, but without lofty ambitions.
Innovations in law can contribute to this national effort. I will mention two key areas.
Climate change leaves us on a precipice beyond which objective or material conditions are not safe, nor stable, nor reversible. We know now that environmental conditions, on the global scale, can be conceived as comprising a ‘safe operating space for humanity’.2 Humanity is on the verge of passing thresholds, or ‘tipping points’, of climate safety.
THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK Human rights considerations should be integral to obligations to tackle climate change. For entire societies, climate change is an ‘existential’ crisis. For example, some states are likely to disappear entirely, millions displaced, lives already shortened. The Paris Agreement acknowledges the human rights context; 3 Australia has signed on to that Agreement.4 The UN Human Rights Council, through the work of a Special Rapporteur, sets out the nexus between climate change and human rights. UN Member States have obligations to protect the enjoyment of human rights from environmental injury.5 These obligations extend to climate change.6 Australia is required to observe these obligations.7 Obligations comprising rights to a safe and healthy environment are connected to fundamental rights, such as rights to life, health, and culture. There are
