29 September 2004
Could Government policy on greenhouse gases lead to litigation? According to a report commissioned by the Climate Action Network Australia ("CANA") and Greenpeace and released on Tuesday, yes. The report is another salvo in the climate law wars that we’ve been tracking for the last year.
What the report is all about
Earlier this year Greenpeace and CANA commissioned the Sydney Centre for International and Global Law (based at the University of Sydney) to examine whether Australia had breached its obligations under the World Heritage Convention to protect the Great Barrier Reef.
Australia signed the Convention in 1974, and the Great Barrier Reef was placed on the World Heritage List in 1981. By signing the Convention Australia assumed obligations including some to World Heritage Properties in Australia such as the Reef. These duties are ensuring the identification, protection, conservation, presentation and transmission to future generations of those properties, and Australia must do all it can to fulfil these duties, to the utmost of its own resources.
The alleged breaches
The report’s argument goes like this. The Reef has problems such as coral bleaching. These problems are caused by global warming, which in turn is caused by greenhouse gases. Australia could limit its emission of these gases but has failed to do all it can, to the utmost of its own resources, to limit those gases.
What more should have been done? According to the report, Australia’s failure to ratify the Kyoto Protocol was a breach of its Convention obligations. This is because, it says, the Protocol is the only currently existing international legal framework for achieving specified reductions in global greenhouse gas emissions that are responsible for the increases in sea temperatures which constitute the most serious threat to the world heritage values of the Reef. Australia therefore has failed to do all it can to ensure the protection and conservation of the Reef, despite States’ voluntary compliance with its targets and the fact that more countries must ratify it for the Protocol to come into effect.
Even if we did ratify the Kyoto Protocol, the report says the Government could still be in breach of the Convention, as more could possibly be done. Practically, this could mean deep cut emissions, although whether Australia has adopted appropriate measures to the "utmost" of Australia’s resources is a complex and difficult legal question of fact and degree. Parties to the Convention also have significant discretion in adopting appropriate policies in response to threats to world cultural and natural heritage.
Nonetheless, says the report, it can be argued that Australia’s decision not to commit to any reduction in greenhouse gases below its 1990 baseline emissions level constitutes a clear failure to comply fully with the Convention, on the assumption that it is within the Australian Government’s resources to pursue more significant cuts (an assumption which it says appears to be confirmed by the willingness of Australian State Governments to adopt greenhouse gas abatement programs independently of the Australian Government).
So, who would sue?
The report does not suggest that individuals could bring court action against Australia for its alleged failure to comply with its Convention obligations - it’s up to countries that have signed the Convention to enforce a signatory’s obligations. It says those countries could argue that these purported breaches are an internationally wrongful act that entails international responsibility and that Australia is required to cease its wrongful conduct and to perform fully its obligations under the Convention.
It also notes, however, that the Convention says that the international community has a duty to protect world heritage, and so signatories are obliged to avoid taking "deliberate measures which might damage directly or indirectly" World Heritage Properties in other signatory countries. Greenhouse gas emissions, it says, could arguably be different to unintentional damage caused by pollution, and thus other countries could also be in breach by not reducing their emissions.
Given this, and the difficulty of proving breach, why would a state sue Australia over damage caused to the Reef? It’s much more likely that one country would complain over damage to its own World Heritage Properties, but again, whose emissions would be to blame?
Having said that, climate risk and potential litigation remain live concerns. CANA and other groups will continue to push the issue.
If you would like any further information or an individual briefing at no charge on any of the issues we discuss in this Alert, or the implications of climate change on your business, please contact any of our experts listed below.
