Full Transcript for Climate Litigation in International Organs and Courts: The Torres Strait Islanders case

Perspectives. 49 00:05:56,780 --> 00:06:05,660 Now, Sheila, when she was asked, What do you most want people to understand be the case, she said the following. 50 00:06:06,380 --> 00:06:12,910 Think about the interconnectedness of the. What happens in that kind of thing? 51 00:06:14,160 --> 00:06:21,340 It impacts the rest of the plans. The idea is the air conditioner for the world and it's breaking down. 52 00:06:22,530 --> 00:06:29,430 Now. I think that that it's quite a monetary statement. 53 00:06:30,660 --> 00:06:39,810 But I the case impacted me somehow and I analyse it for me with the idea that in the future, 54 00:06:39,870 --> 00:06:49,390 should there be a case I had to get it through, I ever had to represent a case of record and opportunity arise. 55 00:06:49,460 --> 00:06:53,570 I will tell you shortly. So if we go to the next place. 56 00:06:55,150 --> 00:07:07,570 Now, this is not an international law case, but this case and I highlight the year 2000 and is is the next case that really grab attention. 57 00:07:08,320 --> 00:07:13,450 I mean, it's a radical case in many ways. It failed originally. 58 00:07:13,490 --> 00:07:19,570 It went on appeal over London's belief income is a national universal Iaw. 59 00:07:19,810 --> 00:07:24,850 It is not. It is a state is it is a private party and it is ongoing. 60 00:07:25,510 --> 00:07:30,729 But it has it now go on the merits. And something I want to highlight concerning this case, 61 00:07:30,730 --> 00:07:40,420 we will do the next one is that here they are attempting to get liability of greenhouse gas emissions or harms arising in a different jurisdiction. 62 00:07:40,420 --> 00:07:43,880 So this is a. Truly transboundary case. 63 00:07:44,300 --> 00:07:50,150 So it is about an entity w e that is accused of a certain conduct. 64 00:07:50,960 --> 00:07:55,780 The impact of all the harm it is happening, 65 00:07:55,790 --> 00:08:07,730 it grew in the middle of them is where a glacier is melting and the claimant argues that it is melting because of the effect of climate change. 66 00:08:08,120 --> 00:08:10,640 R w e is a main actor. 67 00:08:12,380 --> 00:08:19,670 Now, how the courts in Germany were going to deal with that was a big question at the beginning, but they somehow have been doing it. 68 00:08:20,380 --> 00:08:25,310 I know there are two main questions that they want. 69 00:08:25,340 --> 00:08:31,940 They are going to determine whether a U.S.A. universe home is threatened by flooding and mudslides 70 00:08:31,940 --> 00:08:38,419 as a result of the recent increase in the volume of the glacial lake located nearby and how. 71 00:08:38,420 --> 00:08:42,170 rwe3 how gas emissions contributed to that risk. 72 00:08:43,100 --> 00:08:48,110 They have already the courts to rule, to assess evidence, which is already, 73 00:08:48,110 --> 00:08:53,750 procedurally speaking, a major step for any court to do in a case of this sort. 74 00:08:54,530 --> 00:09:01,399

Next. This. Now another precedent that's, I would say, 75 00:09:01,400 --> 00:09:10,270 a development that was likely to shape the thinking I heart towards this type of litigation is the Inter-American Court human rights 76 00:09:10,270 --> 00:09:22,180 advisory opinion developed and I'm sorry the decree which was delivered at the end of 2017 but published on the 7th of February 2018. 77 00:09:22,510 --> 00:09:28,070 Now, this is the key. This is not a conventional case. 78 00:09:28,340 --> 00:09:35,900 It is rather an advisory opinion, but it's an advisory opinion that basically constitutional rights, 79 00:09:36,230 --> 00:09:39,880 environmental law and human rights law for the Americas. 80 00:09:41,050 --> 00:09:48,040 Now the advisory panel recognised the right to a healthy environment as a fundamental right for the existence of humanity, 81 00:09:48,310 --> 00:09:55,630 something no other port had ever said. So by that point in time, and these are part of the right to life, 82 00:09:56,680 --> 00:10:04,780 the court part of that has environmental degradation and the adverse effects of climate change affect the affected enjoyment of human rights, 83 00:10:05,020 --> 00:10:10,690 including fundamentally the right to life. So this was a game changer, in my opinion. 84 00:10:11,890 --> 00:10:16,480 I got to add substantially about this particular advisory opinion. 85 00:10:17,380 --> 00:10:24,180 And so this is how we we mixed these. We get eventually to the of space. 86 00:10:25,060 --> 00:10:30,910 Let me tell you a couple of things about what has happened. 87 00:10:32,370 --> 00:10:38,790 In between. So so what changed from 2005 to 2003? 88 00:10:41,430 --> 00:10:52,950 And most importantly, what have changed further? When I indicated together with my clients and this was in 2019 and we filed the case. 89 00:10:53,460 --> 00:11:00,120 But what changed? There were two major changes. One was obviously the Paris agreement had been adopted. 90 00:11:01,890 --> 00:11:04,980 Because it didn't have an enforcement mechanism. 91 00:11:04,980 --> 00:11:15,290 Litigation was what's going to eventually start as a means to try to implement precise agreements. 92 00:11:17,210 --> 00:11:21,780 Now the second thing that happened was that my opinion then went to sleep. 93 00:11:22,400 --> 00:11:32,480 So these are the two, in my opinion, big events that took place and have made the difference between the in this case and the global. 94 00:11:35,470 --> 00:11:47,030 Now. Some remarks. It wasn't a Phillips soundscape as cold as being caught in being in England. 95 00:11:48,590 --> 00:11:57,149 The topic was climate change mitigation. And he advanced in particular, 96 00:11:57,150 --> 00:12:11,100 a position that it was unlikely that because of a specific U.S. set of human rights boards or that oversee the implementation of the people of Sweden, 97 00:12:12,240 --> 00:12:18,390 were unlikely to contribute in a material way to a broader response to climate change challenges. 98 00:12:18,730 --> 00:12:28,680 And he considered at a time that only a court of general jurisdiction such as the ICJ could possibly be with an issue like climate change. 99 00:12:28,950 --> 00:12:35,580 And it was obviously coming from an influential Abbotsford specialist in environmental law. 100 00:12:35,850 --> 00:12:40,650 More or less what the majority probably saw. 101 00:12:41,760 --> 00:12:44,880 However, I, I felt radically different. 102 00:12:45,930 --> 00:12:49,440 I in a conference in 2018. 103 00:12:50,130 --> 00:12:53,220 On a small estate I attended as a speaker. 104 00:12:53,520 --> 00:13:03,420 And I presented the following topic on making let's see data on endangered populations the national dispute resolution for Climate Change. 105 00:13:03,960 --> 00:13:16,080 Now, my key submission at the conference was that, contrary to the assumption I just told you about the possibilities of eviction, 106 00:13:16,350 --> 00:13:22,740 my view was that international human rights organs not only would be adjudicating climate change claims, 107 00:13:24,030 --> 00:13:28,130 but arguing that they were equipped to do so under international agreement like this. 108 00:13:28,170 --> 00:13:36,840 And I gave us example of the Human Rights Committee in particular, and its potential role in interpreting the Covenant on Civil and Political Rights. 109 00:13:37,110 --> 00:13:43,049 I explain what manner within the party that you are attending. 110 00:13:43,050 --> 00:13:53,220 There were some lawyers that when they spoke to me, they spoke to me shortly after in what became the first case, 111 00:13:53,550 --> 00:13:57,150 a textbook case on climate change before the Human Rights Committee. 112 00:13:59,850 --> 00:14:04,020 So the Torres Strait is a. 113 00:14:05,090 --> 00:14:11,410 Belt of sea, which lies between Papua New Guinea and the north of mainland Australia to the south. 114 00:14:12,050 --> 00:14:20,810 So it joins the out of policy to do with the core of the east and the region is part of the Australia, the Sea and Land Management. 115 00:14:20,810 --> 00:14:27,080 The strategy describes the unique environment of the region and the culture of the people who live in that space, 116 00:14:27,230 --> 00:14:31,700 as well as the history and nature of the occupation of this place. 117 00:14:32,420 --> 00:14:38,450 So the my clients leave absolutely enigmatic island boy or whatever. 118 00:14:40,560 --> 00:14:49,140 Now some points to bear in mind before I go in to what are the key issues in the case? 119 00:14:51,280 --> 00:14:52,990 At the time that the case was filed, 120 00:14:53,220 --> 00:15:03,340 I have worked at preparing the media that said there wasn't a bill pleased to do a human rights climate change case. 121 00:15:05,510 --> 00:15:16,850 I have studied the EMU case and I wouldn't say I cut the cord, but basically I try to understand why this case has not worked. 122

00:15:17,120 --> 00:15:28,400 What was wrong with a limitation, and where I had to strengthen a arguments in order to be successful in human rights laws. 123 00:15:30,320 --> 00:15:38,870 So we didn't have also the gender Supreme Court case that you may be aware it was decided later. 124 00:15:40,390 --> 00:15:45,510 Number two. This was a case of Territorian who is basically square. 125 00:15:47,030 --> 00:15:51,620 He was not a case. It was not a boundary case like the union case. 126 00:15:52,280 --> 00:16:01,710 This was a case where those who were alleging the calm leave in the storage to restore some of the things. 127 00:16:01,850 --> 00:16:06,250 What these. Three. 128 00:16:07,680 --> 00:16:11,550 This was a case that did not have permissible remedies. 129 00:16:12,000 --> 00:16:15,900 So you know that there's a number of the rules of civility. 130 00:16:16,170 --> 00:16:19,200 And one of them is the need for criminals. 131 00:16:19,410 --> 00:16:23,270 But in his particular case, there were simply no limits sorts. 132 00:16:23,820 --> 00:16:33,090 Now, that is quite a bold version. But after examining the domestic legal system in Australia, 133 00:16:33,450 --> 00:16:44,460 it was clear to me that there was simply not a diplomatic source in the state and within challenge that would be 134 00:16:45,660 --> 00:16:54,960 in a way admitting that there were simply no remedies in Australia for the actions of the nature we were alleging. 135 00:16:56,490 --> 00:17:06,910 So that means a lot because. We basically have agreed to believe the parties and the case would progress on to the merits. 136 00:17:07,630 --> 00:17:18,790 There were other types of disability issues raised by the state, but they were of a different nature, somehow mixing with the merits themselves. 137 00:17:20,400 --> 00:17:29,370 Now the analysis I'm going to believe are being made from a general public international law specialist. 138 00:17:30,030 --> 00:17:37,640 So I think it's quite important to remark, because what has been crucial in this litigation is not human rights specialism, 139 00:17:37,710 --> 00:17:43,800 in my opinion, properly understanding how different areas of the law we can find the International Law Clinic. 140 00:17:47,790 --> 00:17:56,200 So. In a landmark decision, 141 00:17:56,470 --> 00:18:06,430 the Human Rights Committee found that Australia failed to adequately protect Indigenous Strait Islanders against adverse impacts of climate change. 142 00:18:06,460 --> 00:18:10,180 What a breach of International Covenant on Civil and Political Rights. 143 00:18:10,510 --> 00:18:15,520 This was in September, just in the 20 seconds. So this is a very fresh decision. 144 00:18:16,240 --> 00:18:16,450 Now, 145 00:18:16,450 --> 00:18:29,680 the complaint the complaint was brought by eight inhabitants of the tourism space in different islands and also some of them because of the children. 146 00:18:31,410 --> 00:18:40,020 Now they belong to the Indigenous minority group of islands in Australia and they need one of their improvements. 147 00:18:40,410 --> 00:18:44,300 Now they've announced that the sea level rise was causing flooding and they're 148 00:18:44,310 --> 00:18:50,040 also on the of those islands and high temperature and ocean acidification 149 00:18:51,120 --> 00:19:01,290 that there was a bleaching the reef there and the decline of seagrass beds and other nutritional and culturally important marine species for them. 150 00:19:03,180 --> 00:19:08,520 They told me that basically they couldn't tell the systems anymore. 151 00:19:10,970 --> 00:19:16,910 We are talking about people that whose lives were always punctuated by seasons. 152 00:19:17,880 --> 00:19:24,720 Now this is a very similar parallel with emus that were losing the ability to predict the weather. 153 00:19:24,780 --> 00:19:32,430 And they were losing their ability to move and do the things they did at certain points in time 154 00:19:32,700 --> 00:19:37,020 because they couldn't recognise the lines and they weren't recognised anymore in this instance. 155 00:19:38,690 --> 00:19:52,070 Now the Torres Strait Islanders argue that Australia has violated their rights under Article 67 and also 24 inches the rights of the child. 156 00:19:52,940 --> 00:20:03,560 Read the law and in conjunction with the pending. Well, now they've announced that the state party has paid for other basic measures, for example, 157 00:20:04,160 --> 00:20:11,270 to protect the old life way of life and culture against the effects of climate change, especially sea level rise, 158 00:20:11,840 --> 00:20:19,760 and for mitigation measures to reduce greenhouse emissions and promotion of fossil fuel extraction and use, 159 00:20:20,060 --> 00:20:23,990 which continues to affect the orphans and other islanders, 160 00:20:23,990 --> 00:20:29,490 endangering their livelihood precisely in the violation of the rights and advocacy of the kinds. 161 00:20:30,950 --> 00:20:33,200 Now, as I think was mentioned, 162 00:20:33,200 --> 00:20:41,090 this was the first record brought by Climate Water that were evidence of low light islands against the silver in the bay. 163 00:20:41,660 --> 00:20:47,660 And the residual had been down the ground, breaking several in several ways. 164 00:20:49,470 --> 00:20:57,390 I would say that the recognition that the Holocaust indigenous peoples are among those who are extremely vulnerable, 165 00:20:57,670 --> 00:21:01,770 recently experiencing severely disrupted climate change impacts. 166 00:21:02,160 --> 00:21:05,760 It's already had implications from the experience of it. 167 00:21:06,510 --> 00:21:17,580 So the first page recognises that actually climate change effects constitute a breach of the Covenant on Civil and Political Rights. 168 00:21:18,760 --> 00:21:28,440 Now that's seven points that I want to make. The first is that the need, the failure to address climate change impacts

cannot be attributable. 169 00:21:28,450 --> 00:21:33,129 Post-paid has been the spend that the committee rejected. 170 00:21:33,130 --> 00:21:41,120 They are the means by Australia that climate change was a global phenomenon and therefore it couldn't have responsibilities, 171 00:21:41,140 --> 00:21:45,250 was attributable to the actions of all the states combined. 172 00:21:45,250 --> 00:21:49,310 And you couldn't really individually have one to say to responsible. 173 00:21:50,540 --> 00:21:57,560 Now citing been what Mayor Alexander saw her debating climate law. 174 00:21:57,770 --> 00:22:03,740 And then finally thoughts on the absurdity of relying on human rights law to go after metres. 175 00:22:04,130 --> 00:22:12,830 Australia attempted to support its position, asserting that academic scholars have noted the pathways involving anthropogenic climate 176 00:22:12,830 --> 00:22:18,379 change and especially its impacts and implications of fuels on the human rights law, 177 00:22:18,380 --> 00:22:23,270 could not adequately address the depth and breadth of the causes and effects of climate change. 178 00:22:24,830 --> 00:22:29,180 So the committee rejects the substance of the statement. 179 00:22:29,600 --> 00:22:35,239 We found that the state can be held responsible for its own reasons, and in this particular case, 180 00:22:35,240 --> 00:22:42,880 the Committee observed that the formation provided by both parties indicates that the state party is and 181 00:22:42,920 --> 00:22:49,880 must be in recent decades among the countries in which large amounts of greenhouse gas emissions used. 182 00:22:50,510 --> 00:22:56,780 The committee also notes that the state side, the one side on work economy and human development indicators. 183 00:22:58,010 --> 00:23:05,530 So you also have not identified specific acts and omission that were attributable to the state. 184 00:23:06,050 --> 00:23:14,950 So this was not an abstract. They realised they were not relying on argument but rather staple lists of parts. 185 00:23:14,990 --> 00:23:15,540 Unknown issue. 186 00:23:17,130 --> 00:23:26,300 So they argue that those nations have already and will continue to impair their rights in ways that will worsen over time because of the latent, 187 00:23:26,370 --> 00:23:30,980 unpredictable nature of climate change. Now. 188 00:23:32,030 --> 00:23:35,749 They also argue that the protection of the right to life requires the state to review their 189 00:23:35,750 --> 00:23:40,160 energy policies and prevent the dangerous emissions of greenhouse the greenhouse gases. 190 00:23:40,530 --> 00:23:54,380 I'd say more about 50% of the rate. Now a second big topic on the case is the fact that binding invalidates and switches are now clearly 191 00:23:55,640 --> 00:24:02,210 the way to be relevant to the interpretation of human rights in the context of climate gentrification. 192 00:24:02,410 --> 00:24:12,740 So this is this was a race within the petition point that I raised, which basically was you don't interpret the treaty in isolation. 193 00:24:13,190 --> 00:24:18,350 I'm benefited from all the work of the commission, particularly in presentation, 194 00:24:19,190 --> 00:24:24,500 and asserted that you interpret the treaty within its normative environment. 195 00:24:25,010 --> 00:24:31,100 And this was the position that is quite significant because this is part of the Paris Agreement and. 196 00:24:32,360 --> 00:24:36,530 To play a role. In any event, the potential of a human was seen. 197 00:24:37,940 --> 00:24:45,650 We argue that it was relevant to the interpretation of the beliefs of white Australia, 198 00:24:45,950 --> 00:24:56,120 that he was not telling that you couldn't do that on the committee, and I decided that it was relevant to accept this. 199 00:24:56,360 --> 00:25:02,599 On the one hand, obviously, that international agreements are relevant for interpretation of human rights 200 00:25:02,600 --> 00:25:10,320 obligations under the ICC are the implications of anything other than they are, 201 00:25:10,340 --> 00:25:14,500 not just for the purposes of this application. I'm not claiming that red preach the divisive. 202 00:25:18,300 --> 00:25:21,810 Heard arguments, climate change, no mercy. 203 00:25:22,680 --> 00:25:33,990 One of the big issues in the case was whether the threat, the real threat was really going to happen in empathy years and not now. 204 00:25:34,290 --> 00:25:40,310 So the position of Australia was this is all future violations. 205 00:25:40,380 --> 00:25:43,710 This is not about violations of I have any now. 206 00:25:46,800 --> 00:25:54,000 But the authors argue that this actually contradicts the evidence that the state itself, 207 00:25:54,900 --> 00:26:00,960 in the state offices had in connection to what was going on in the state. 208 00:26:02,670 --> 00:26:10,320 The state has already violated its duty to avert devastating and future irreversible impacts on life protected by the cutting, 209 00:26:10,950 --> 00:26:14,100 including impacts caused by existing greenhouse gas emissions. 210 00:26:14,640 --> 00:26:16,920 Protective measures must be initiated today. 211 00:26:17,940 --> 00:26:25,140 Climate change is a slow onset process that a big body may violate its obligations before the worst impacts occur. 212 00:26:25,500 --> 00:26:29,550 This was the positive advance by my clients. 213 00:26:30,720 --> 00:26:40,800 So here I like to point out that there has to be a key distinction between a violation of a primary obligation and the impacts of that. 214 00:26:41,310 --> 00:26:46,890 Now, these impacts coming from, you know, traditional environmental law litigation. 215 00:26:47,100 --> 00:26:51,180 I've been acting for a company on a case on something. 216 00:26:51,570 --> 00:26:56,370 This is a court case example. I'm one of the clear thinkers, for example. 217 00:26:56,370 --> 00:27:03,990 I don't know what this

means in certain circumstances. This being may happen at one point in time. 218 00:27:04,200 --> 00:27:09,780 The facts may come many years later, and this is something that the law even considers for limitations issues. 219 00:27:10,230 --> 00:27:16,850 So the same really applies when it comes to environmental harm, even nature. 220 00:27:17,020 --> 00:27:20,720 Here I would argue that it happens in the case of emission. 221 00:27:22,690 --> 00:27:30,610 Now this is based on was not perceived, I would say not always perceived so clearly by everybody. 222 00:27:31,450 --> 00:27:35,590 And I think it is a paramount importance in this type of litigation. 223 00:27:37,290 --> 00:27:49,750 Now. I mentioned that the State has already analysed the situation in this straits and it was quite cool 224 00:27:50,120 --> 00:27:57,670 because they themselves have a big order that says that there was an ongoing humanitarian crisis, 225 00:27:57,760 --> 00:28:02,770 human rights crisis because of the time, which is in fact the territory, 226 00:28:03,430 --> 00:28:15,190 because it is so sensitive to sea level rise that 20 centimetres of sea level rise would actually be helpful for these islands. 227 00:28:17,030 --> 00:28:27,319 Now. The author submitted a statement asserting that adverse effects of climate change have yet to be settled with. 228 00:28:27,320 --> 00:28:32,360 A third of those claims were based both on current violations and imminent violations. 229 00:28:32,720 --> 00:28:40,280 Among those severe impacts from climate change that already were already severe were plotting an invasion of villages, 230 00:28:40,640 --> 00:28:51,050 plotting an invasion or benefit from violence lost by erosion of the traditional plantations and three traditional gardens. 231 00:28:51,350 --> 00:28:58,010 Ocean acidification, reduced ability to practices, traditional culture and above all, to the next generation. 232 00:28:58,280 --> 00:29:00,350 They were expanding in size and strength. 233 00:29:01,100 --> 00:29:13,190 Some of the houses had been solely because of the sea level rise and they were the least endless of all the islands they can place. 234 00:29:13,610 --> 00:29:24,230 One of the authors described it vividly that he's island was changing shape and he was rotating clockwise. 235 00:29:24,710 --> 00:29:29,600 But on a sped up point. When I read these, I couldn't really quite figure out how this could be. 236 00:29:29,780 --> 00:29:44,359 But I visited the island like in in Germany, and when I was there, I understood how the sun is not stable and how, for example, 237 00:29:44,360 --> 00:29:55,760 there they have for 50 years it managed to stabilise the sun but literally also that it was it was going to change. 238 00:29:55,820 --> 00:29:59,530 Changing of the red was moving. So let's say. 239 00:30:04,850 --> 00:30:09,140 A different point. Politics, obligation to do diligence. This is also another. 240 00:30:09,740 --> 00:30:13,400 Oh, sorry. Let me just finish with what the media says here. 241 00:30:14,120 --> 00:30:21,769 So the committee said the authors presented in the communication information indicating the real predicament they have 242 00:30:21,770 --> 00:30:28,850 personally an actual experience owing to disrupt the climate event and its low onset processes set aside in a lawsuit. 243 00:30:29,180 --> 00:30:37,100 They also argue, in part, that those predicaments separately compromised their ability to maintain their livelihood, subsistence and culture. 244 00:30:38,150 --> 00:30:48,350 This was a very important, I say, folly by the community because in fact what? 245 00:30:48,350 --> 00:30:59,890 Acknowledge us. Who? The ability was also acknowledged and the things moving on to the next Boeing focuses on big agents and dividends. 246 00:30:59,900 --> 00:31:04,790 Another key aspect of this is based on the plan to implement positive obligations. 247 00:31:05,630 --> 00:31:13,400 The state argued that specific obligations under the covenant do not require maximum possible resources nor high possible ambition. 248 00:31:13,790 --> 00:31:19,489 But notes such an unprecedented would not only place an impossible burden on state, 249 00:31:19,490 --> 00:31:23,900 but would also be displaced reasonable policy choices made in good faith states. 250 00:31:24,170 --> 00:31:28,790 And they are set to for some challenges that impact on the enjoyment of human rights 251 00:31:29,090 --> 00:31:34,280 under the covenant and decide how to distribute limited resources to address them. 252 00:31:35,520 --> 00:31:40,469 And he'd also argue that it would be inappropriate and unfounded for the committee to 253 00:31:40,470 --> 00:31:47,340 interpret the code in such a way as now to remain the control and difficult policy decisions 254 00:31:47,550 --> 00:31:53,280 of a democratically elected government that inherently compromises trade offs and the 255 00:31:53,280 --> 00:31:59,970 allocation of resources across a range of challenges to the fulfilment of human rights. 256 00:32:00,580 --> 00:32:05,400 The urge the Commission to adopt an unduly broad interpretation of a political obligation. 257 00:32:05,970 --> 00:32:09,600 Now in the concurring opinion of member Jp Berry. 258 00:32:10,140 --> 00:32:20,490 He stated the following The states are under a positive obligation to take all appropriate measures to ensure the protection of human life. 259 00:32:20,610 --> 00:32:21,600 In this context, 260 00:32:21,900 --> 00:32:31,530 the due diligence standard required the state to set the national climate mitigation targets at the level of the highest possible ambition and to 261 00:32:31,530 --> 00:32:39,780 pursue effective domestic mitigation measures with the aim of perceiving those targets when a state is found not to have completed the commitments. 262 00:32:40,380 --> 00:32:44,360 Finally, the grounds for this question for the complainants. 263

00:32:44,430 --> 00:32:50,640 While the big concern could be required to step up efforts and prevent similar violations in the future. 264 00:32:51,450 --> 00:33:01,679 He actually said something that I find Cousteau and he wants that since it is thermostatic accumulation of CO2 and other GHG that over time 265 00:33:01,680 --> 00:33:12,120 he described global warming and climate change if due diligence when taking mitigation and adaptation action based on the best science. 266 00:33:12,660 --> 00:33:17,910 This is an individual responsibility of the state relative to the risk of the state, 267 00:33:17,910 --> 00:33:23,910 and its capacity to address is a higher standard of due diligence applied in respect of those are 268 00:33:23,910 --> 00:33:29,280 faced with significant total with significant total emissions very high for capita emissions. 269 00:33:29,520 --> 00:33:35,730 Whether these are parts or conservation, given the greater burden that their emissions play on the global planet. 270 00:33:37,710 --> 00:33:44,400 So while the majority of people refer to these points, specifically the authors of uncompetitive abatement, 271 00:33:44,510 --> 00:33:50,010 the highest court in Australia had ruled that the state do not own a duty of care for failing to 272 00:33:50,010 --> 00:33:54,660 regulate environmental harm was one of the reasons why the committee found the case of New Zealand. 273 00:33:55,140 --> 00:34:01,590 So in other words, the needs and obligations of the citizens, the ease of obligation, of duty, of care. 274 00:34:03,360 --> 00:34:11,720 And you could infer that from from the point that the point was not available to them the maximum allowable in the national system. 275 00:34:11,930 --> 00:34:17,150 Look, Simon. An additional point. 276 00:34:18,230 --> 00:34:23,620 Individual people's rights and climate change is a major win for Indigenous peoples. 277 00:34:23,640 --> 00:34:29,960 Considering that the Human Rights Committee has not been extremely good, to say the least. 278 00:34:30,710 --> 00:34:40,160 This is one of the most important cases the committee has produced on slides that indicate that indigenous people's rights and as you can see, 279 00:34:40,340 --> 00:34:50,400 vindicates them even from similar claims in other systems like the one in the commission I just saw. 280 00:34:50,630 --> 00:34:55,709 So if you go. And so on. 281 00:34:55,710 --> 00:35:03,570 Article 17, which is the protection column, was acknowledged that the home of one of the orphans, 282 00:35:03,570 --> 00:35:08,760 for example, was rolled by flooding in 2010 and that they also depended on fish. 283 00:35:09,270 --> 00:35:14,440 So this is his most important is how home is also because school is not. 284 00:35:15,000 --> 00:35:25,470 How would you mean in this case was broader. Was was was the idea was was where you are a body and what you consider you are unfit for land. 285 00:35:26,370 --> 00:35:31,770 So they also depended on fish made them resources love crops please for the 286 00:35:32,430 --> 00:35:36,960 livelihoods depend on the help of the surrounding ecosystems for their own. 287 00:35:37,240 --> 00:35:41,110 For their own would be. It is what the Committee acknowledge and consider. 288 00:35:41,160 --> 00:35:46,950 The aforementioned elements contribute components of the traditional indigenous way of life of the authors. 289 00:35:47,220 --> 00:35:55,620 We enjoy a better relationship with the territory and that these elements can be considered to fall under Article 17 of the Covenant. 290 00:35:55,860 --> 00:36:00,780 I really highlight these because as you can see, it is not just territorial land. 291 00:36:01,260 --> 00:36:08,190 Territorial waters are also entered into this analysis and I think this is going to be and I would come back to my conclusion, 292 00:36:08,430 --> 00:36:14,610 quite crucial because they have already been accepted where all these impacts like ocean 293 00:36:14,610 --> 00:36:18,960 acidification impacting on the species that you could find a certain point in time. 294 00:36:19,260 --> 00:36:26,010 So all of these could potentially be extremely useful for a tribunal such as it will be, for example, 295 00:36:26,010 --> 00:36:34,170 assessing potentially and, you know, a complaint or also an advisor opinion on on climate change on those. 296 00:36:36,650 --> 00:36:41,360 So the committee made a number of important considerations concerning Article 27. 297 00:36:42,290 --> 00:36:48,540 The. They really decided to paper over the indigenous peoples. 298 00:36:48,540 --> 00:36:55,979 So to maintain the ability to believe the traditional ways and to submit to the children 299 00:36:55,980 --> 00:37:00,990 of future generations that culture and occupations and use of land and sea resources, 300 00:37:01,290 --> 00:37:08,280 and that this all disclosed a violation of the state's positive obligation to protect the rights of the minority culture. 301 00:37:08,520 --> 00:37:13,200 So here we have seen, again, the point, the positive obligation, and again, 302 00:37:13,230 --> 00:37:18,140 the sign up here is due diligence on why they fell on this sustainable of care, 303 00:37:18,150 --> 00:37:25,200 because their own agencies had already planned that there was going to be a human rights presence in the tourism space, and yet they did nothing. 304 00:37:25,620 --> 00:37:29,610 And the place was considered as part of. 305 00:37:31,280 --> 00:37:37,100 The roll call in a way so and so he was not at all needing help. 306 00:37:38,240 --> 00:37:44,180 So this really shows you that to be within the legal framework you are probably. 307 00:37:45,090 --> 00:37:51,060 So DeLay would make you already be accountable or be liable for moving on from that. 308 00:37:51,080 --> 00:37:59,000 Why collide with this is that this is a very was a very key submission in the 309 00:37:59,000 --> 00:38:07,010 case the committee

decided we would call in general number six where adequate 310 00:38:07,010 --> 00:38:11,839 sample is held that the obligation for the parties to respect and ensure the right 311 00:38:11,840 --> 00:38:17,420 to life extend reasonably foreseeable fears of a life threatening situation. 312 00:38:17,660 --> 00:38:25,370 That kind of resulting loss of life would be the knowledge that back in 2008 or then a number of things. 313 00:38:26,570 --> 00:38:32,810 And they also included that that those threats may include adverse climate change impacts. 314 00:38:33,380 --> 00:38:34,970 But having said all of that, 315 00:38:34,970 --> 00:38:44,120 they unconvincingly avoided the inherent contradiction of finding a violation of the sentence seven being in this case, but not a article thing. 316 00:38:45,200 --> 00:38:51,019 Because how can indigenous people possibly have a life with dignity when the culture accepted by the community and the 317 00:38:51,020 --> 00:38:56,690 existence of the group is threatened by a plot by climate change to the extent described by the authors in the case? 318 00:38:59,170 --> 00:39:01,810 So this really gave rise to a number of separate opinions. 319 00:39:02,560 --> 00:39:08,469 Committee member Massa found that there had been a violation of five six and if better than a third 320 00:39:08,470 --> 00:39:16,020 party starts with an obligation to prevent a foreseeable loss of life for the bulk of climate change, 321 00:39:16,030 --> 00:39:21,760 I'm wondering what possible means. But it is quite important to. 322 00:39:23,030 --> 00:39:32,810 Now the joint opinion by committee members. I can see a frown on the part of the dissenting pound about the right to life, 323 00:39:33,020 --> 00:39:41,840 and b critically noted using the real unforeseeable foreseeable responder the majority the required requires adverse events. 324 00:39:42,570 --> 00:39:51,979 Now this is wrong. And this is the joint the joint the dissenting committee members didn't agree that they said 325 00:39:51,980 --> 00:39:57,830 that the majority was required adverse impact to demonstrate an Article six violation. 326 00:39:59,780 --> 00:40:04,610 But they they found wrong that it was wrong. Now, in my view, 327 00:40:04,880 --> 00:40:10,490 the joint opinion is blind and the majority view reflects a confusion between obligations 328 00:40:10,490 --> 00:40:16,760 under Article six and the reach and the impacts of the violation of the primary obligations. 329 00:40:17,390 --> 00:40:25,570 But most importantly. It is a lack of understanding of. 330 00:40:26,760 --> 00:40:32,280 The meaning of life, though they were persuaded that the. 331 00:40:33,940 --> 00:40:39,250 The environments that were sustaining the lives of all these people on the island were collapsing. 332 00:40:40,800 --> 00:40:43,810 And yet. They were big. 333 00:40:44,060 --> 00:40:47,770 They wanted to see it. Look what they couldn't control. 334 00:40:47,990 --> 00:40:53,870 It were real, the war imminent and the war possibility in the correct manner. 335 00:40:54,350 --> 00:40:58,370 As the Supreme Court in the Netherlands case. 336 00:40:59,660 --> 00:41:04,970 And I'm going to go to that very quickly. When I grew up, I'll. Now the. 337 00:41:10,820 --> 00:41:17,690 One of the things that I would highlight here is that what is foreseeable is also not what is imminent, 338 00:41:17,690 --> 00:41:26,270 is not doing is not about time, but about ten or 15 years of the island is no longer there. 339 00:41:27,850 --> 00:41:37,070 The issue of imminence is about how real you can see how the risk it is for the people that are arguing that impacts. 340 00:41:37,610 --> 00:41:45,950 It is not a simple reality knowing it's a notion of reality as a notion of how direct that threat is is against. 341 00:41:47,030 --> 00:41:57,890 And in this particular case, everything has been demonstrated in terms of how real this was at the moment that that became real. 342 00:41:58,730 --> 00:42:02,720 The duty to act diligently feels comfortable. 343 00:42:09,590 --> 00:42:14,580 The joint opinion added While we agree that the state party is not solely responsible for climate change. 344 00:42:14,600 --> 00:42:21,319 The main question before the committee is significantly narrower Has the state party violated the covenant by failing 345 00:42:21,320 --> 00:42:28,300 to implement adaptation and mitigation measures to combat adverse climate change impacts within its territory? 346 00:42:28,310 --> 00:42:36,680 Responding to the offers. The majority opinion relies on project initiated by a state since 2013, with the state as one of them was sued. 347 00:42:37,010 --> 00:42:45,440 A year later, they wanted to try to put together some money for seawalls and in a way hoping it was good that they think so, 348 00:42:46,160 --> 00:42:51,620 but in a way that they were trying to see what we are already doing, where we have to do. 349 00:42:51,830 --> 00:42:56,900 Now the majority opinion relies on the project. While these measures had been climate change resilience. 350 00:42:57,170 --> 00:43:05,390 The majority that is not sufficient sufficiently consider the violations that had already occurred at the time of filing this communication. 351 00:43:05,660 --> 00:43:10,280 That is the failure to repeat commitments obligations under Article six. 352 00:43:13,260 --> 00:43:16,240 Nicole Kidman. And this is the last point I'm making for. 353 00:43:19,660 --> 00:43:25,620 In practical terms, however, it didn't matter whether we got there via the gate or the right, like by the gate. 354 00:43:26,620 --> 00:43:33,340 A sense the obligations of conservation measures is a legal consequence of the findings, I would argue. 355 00:43:33,820 --> 00:43:40,990 And the reason for that is because the immediate steps towards the island being in the complaint are entitled to full reparation. 356 00:43:41,680 --> 00:43:46,720 The

meaning of what full reparation intend is defined by international law. 357 00:43:47,560 --> 00:43:53,710 The committee referred to compensation, which is a precedent now with the notion of loss and damage. 358 00:43:54,580 --> 00:43:59,170 This is connected to the fact that the state knew. So this is very important knowledge. 359 00:44:00,660 --> 00:44:03,870 Now this board also at the committee, 360 00:44:03,870 --> 00:44:11,940 a crucially a paper that they find is also under an obligation to take steps to prevent similar violations in the future. 361 00:44:12,570 --> 00:44:16,770 Now, these people, I would argue, within the scope of warranty, of no repetition. 362 00:44:17,280 --> 00:44:21,780 And it can only be achieved by information measures because it doesn't matter 363 00:44:21,780 --> 00:44:29,400 how well you do it if the emissions are continuing in the manner they are. 364 00:44:30,570 --> 00:44:36,510 So the committee gave I would say that it is an important legal consequence arising from the findings of the committee, 365 00:44:36,510 --> 00:44:43,410 which now has to be implemented. The component of being able to points out that these as well. 366 00:44:44,810 --> 00:44:53,990 You read that, you can see that. He also points out that these duties somehow implicit in the decision of the majority. 367 00:44:54,650 --> 00:45:02,150 Now, the committee gave the report on the measures taken to implement this decision, which is that when this was notified, what? 368 00:45:03,600 --> 00:45:14,940 Now I want to make perhaps some some final conclusion or be made on the way forward where things that need to be the big achievement, 369 00:45:14,940 --> 00:45:23,040 but they're also things that need to be clarified. So let me first talk about the issue of imminence. 370 00:45:23,490 --> 00:45:24,540 So this has to be correct. 371 00:45:25,470 --> 00:45:34,620 The right to life is the message in the decision, and this has to be addressed is possible that is required in security for generals. 372 00:45:35,550 --> 00:45:44,340 And maybe a court that has a bench with more generals may be able to engage in a better position. 373 00:45:44,550 --> 00:45:53,730 But on the other hand, you had the gender Supreme Court case where, you know, these are domestic court judges that never nevertheless got it right. 374 00:45:55,770 --> 00:45:58,980 Why? Because it is quoting about. 375 00:46:00,670 --> 00:46:08,980 About that position that their immediate was not prepared to imminence in the sense that the risk must materialise within a short period of time, 376 00:46:09,190 --> 00:46:16,870 but rather that the risk in question is directly questioning the presence of both the protection to the European Court of Human Rights, 377 00:46:17,050 --> 00:46:21,100 also regarding risks that may only materialise in the longer term. 378 00:46:21,820 --> 00:46:29,140 And this was a position we advance the joint and separate opinion. 379 00:46:30,610

--> 00:46:32,860 So it the majority didn't. 380 00:46:33,070 --> 00:46:41,980 But sometimes when you have so many disagreements with a majority, when you have the because you know there's an issue there, 381 00:46:42,100 --> 00:46:46,540 perhaps they have to be look again for the future in control cases. 382 00:46:47,800 --> 00:46:55,570 Now, on the issue of due diligence, again, I think that this is going to be it's quite an important sign that it is already becoming clearer. 383 00:46:56,140 --> 00:47:04,060 This case is contributing to that. The Heathrow expansion case, for example, in the UK Supreme Court decision in that case, I submit. 384 00:47:04,120 --> 00:47:08,469 Ms. So also he's here. 385 00:47:08,470 --> 00:47:16,750 It's quite clear in this case that it's on obligations, planning obligations if they thought it's on their own inhabitants. 386 00:47:17,050 --> 00:47:22,090 I mean, in the Heathrow case, somehow the UK just kind of said, you know, it's not unincorporated. 387 00:47:22,210 --> 00:47:27,220 We've been so talking about the place of women and so on. 388 00:47:27,540 --> 00:47:31,330 So in a way, kind of thinking this is not important for UK. 389 00:47:33,470 --> 00:47:42,530 Guidance. But really there is an obligation, human rights connected on emissions toward your own population anyways. 390 00:47:42,530 --> 00:47:48,440 So it's not that it was a boundary issue, but it's also an issue that will affect your own people. 391 00:47:51,340 --> 00:48:00,700 And this has to be over. There it is. We did not in the UK look at the by the women doesn't really entail any obligation of resort. 392 00:48:00,910 --> 00:48:06,819 Of course not. But now we have seen that what impelled is an obligation and obligation to our 393 00:48:06,820 --> 00:48:10,450 best efforts of due diligence and to do that with the best available science. 394 00:48:11,670 --> 00:48:17,489 So definitely this is going to be a point that will continue being referred to in cases. 395 00:48:17,490 --> 00:48:22,290 And now we can see how relevant this is. This is for human rights obligations. 396 00:48:25,000 --> 00:48:31,510 Obligated to provide remedy. Now it's clear that the same obligation in this country to climate change. 397 00:48:32,110 --> 00:48:39,580 So domestic systems should run if they don't have to do so unless they want to be sued in the national systems. 398 00:48:40,450 --> 00:48:45,310 Positive obligation to protect some. Yes, you can be sued for not following that approach. 399 00:48:46,540 --> 00:48:57,220 Criticisms. A couple of them just closed. This case took about four years to litigate from 2019 to do with long period of time. 400 00:48:57,550 --> 00:49:04,450 I think the procedurally speaking system should deal with these emergency in a different manner. 401 00:49:04,780 --> 00:49:11,920 I think that the European Court has taken a better approach in human rights to date in actually prioritising this type of cases, 402 00:49:12,160 --> 00:49:19,399 and I feel that is the correct approach. Another point that they probably didn't get right. 403 00:49:19,400 --> 00:49:23,690 And I think that it needs to be corrected because these two right leaning heads into the band, 404 00:49:23,690 --> 00:49:28,970 and that's quite crucial to understand how the dynamics of life play in a case like this one. 405 00:49:29,540 --> 00:49:36,960 And the Human Rights Committee. You didn't actually see that interdependence and the connections between two lives. 406 00:49:37,340 --> 00:49:45,020 You know, and like point, I'm worried that a separate analysis which really goes contrary to, 407 00:49:45,350 --> 00:49:50,590 you know, the most basic, in my view, my position when it comes to the rights. 408 00:49:53,250 --> 00:50:01,680 So finally, I'd say that this case potentially can be very helpful for you than the other cases. 409 00:50:03,330 --> 00:50:09,630 And I say not only for territorial jurisdiction cases that are currently before the European Court of Human Rights, 410 00:50:09,900 --> 00:50:13,170 but I say that possibly before the ICJ, 411 00:50:13,170 --> 00:50:14,050 in my opinion, 412 00:50:14,100 --> 00:50:23,550 the people in the pipeline clearly also likely to be very important in a potential case because for the reasons that I mentioned briefly. 413 00:50:24,750 --> 00:50:32,760 So we have we have a number of reasons to be hopeful of this bond as it has been discussed, perhaps not, you know, 414 00:50:32,860 --> 00:50:41,010 the way that I consider this applied, but certainly providing an amazing way for the Torres Strait Islanders. 415 00:50:41,220 --> 00:50:48,750 And I like to finish with a quote from them. And if I may, I am I still in time to do that? 416 00:50:49,080 --> 00:50:53,220 So this is this is key. But I and he said. 417 00:50:54,460 --> 00:51:01,120 But then something really important to our culture because they tell us how we live and what we call different times. 418 00:51:01,360 --> 00:51:09,009 They lead to the four winds that we have on the island becomes at different times of year the queen windscreen before the species for hunting, 419 00:51:09,010 --> 00:51:12,430 fishing, harvesting. They are like the patterns that shape life. 420 00:51:13,600 --> 00:51:18,249 We as people are so connected to everything around us. The island is what make us. 421 00:51:18,250 --> 00:51:22,329 It keeps us our identity. We know everything about environmental. 422 00:51:22,330 --> 00:51:28,610 This island, the land of sea, the plants, the weeds, the stars, the seasons, the island make us who we are. 423 00:51:28,810 --> 00:51:32,230 Our whole life comes from the island and the nature here. 424 00:51:32,440 --> 00:51:38,410 Environment. It is a spiritual connection. We know how to have the beach from this island right here. 425 00:51:38,770 --> 00:51:43,180 We get that from generations of knowledge that has been passed down to us. 426

00:51:43,390 --> 00:51:51,640 I know very every species of plant animal on this island, the way the vegetation changes, what to harvest at different times of the year. 427 00:51:51,850 --> 00:52:03,540 Now you cannot predict the seasons. This is really what outraged me when I when I read these statements and if I go to Singapore, not just be. 428 00:52:05,110 --> 00:52:09,130 Our ancient culture, one of the oldest living causes in the world is threatened. 429 00:52:09,400 --> 00:52:15,790 Historically, we are sort of Strait Islanders have had our land and resources taken and our sacred sites. 430 00:52:15,900 --> 00:52:20,290 So I feel as if we are neglected and our sacred sites threatened. 431 00:52:20,290 --> 00:52:24,490 Again, I would probably be alive to see my children not having anything. 432 00:52:24,670 --> 00:52:29,740 When they are adults, they will not have anything for the children who will be living on another man's land. 433 00:52:30,250 --> 00:52:34,330 That is with my identity. They must seek. Legal identity will die. 434 00:52:34,600 --> 00:52:39,940 I know I love to teach my children, but I cannot teach my children about that inheritance when I'm not in men's land. 435 00:52:40,210 --> 00:52:43,450 We won't have the sacredness and the power of our culture. 436 00:52:44,020 --> 00:52:49,240 Our land is a stream connecting us to a culture. It ties us to who we are. 437 00:52:49,360 --> 00:52:54,630 If we were to have to move, we would be like helium balloons disconnected from our culture. 438 00:52:54,640 --> 00:52:58,360 Our culture would become extinct. We are dying ways of thinking. 439 00:52:59,260 --> 00:53:01,900 This was the way they put their stories forward. 440 00:53:02,800 --> 00:53:08,980 And this case has vindicated then were rights actually need the protection of the state and we are going to 441 00:53:08,980 --> 00:53:18,860 obviously blow it up most ensure these these decision which in a way have already been put in the state point. 442 00:53:19,120 --> 00:53:26,350 It's that nearly a year after this case was filed. So the efforts of these, in a way, been isolated. 443 00:53:26,410 --> 00:53:29,450 You have seen the road and I have showed you the road. 444 00:53:30,100 --> 00:53:35,379 It took a lot of processing and thinking already from the moment when the means failed. 445 00:53:35,380 --> 00:53:42,370 And I want to find out why did the means failed. I want to dedicate the work I did on this case to them. 446 00:53:42,370 --> 00:53:47,890 And it was a sheila which perhaps will not succeed on the particular case, 447 00:53:48,790 --> 00:53:53,350 but then which really were telling us that very much what was going to happen. 448 00:53:53,890 --> 00:54:00,220 And I would say that I'd like you to go. All of you in this room, I'm going to tell you really what imminence means, 449 00:54:00,580 --> 00:54:06,310 because any any effects is not going to be like a slow is going to be abrupt. 450 00:54:06,670 --> 00:54:15,610 And in a way, we are already perceiving that somehow. So this is not just in a case and it's not just an academic exercise. 451 00:54:16,330 --> 00:54:22,600 This is unfortunately crucial for the survival of the world and our own survival. 452 00:54:22,810 --> 00:54:23,560 Thank you very much.