The Impact of Climate Change On Indigenous People The Implications For The Cultural Spiritual Economic and Legal Rights of Indigenous People

The International Journal of Human Rights
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The impact of climate change on indigenous

people – the implications for the cultural, spiritual,
economic and legal rights of indigenous people
Jay Williams
To cite this article: Jay Williams (2012) The impact of climate change on indigenous people –
the implications for the cultural, spiritual, economic and legal rights of indigenous people, The
International Journal of Human Rights, 16:4, 648-688, DOI: 10.1080/13642987.2011.632135
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The International Journal of Human Rights
Vol. 16, No. 4, May 2012, 648 –688
The impact of climate change on indigenous people – the implications

for the cultural, spiritual, economic and legal rights of indigenous
people
Jay Williams∗
Scientific evidence has established that athropogenic carbon pollution and climate
Downloaded by [University of Strathclyde] at 00:45 09 March 2016
change will have a catastrophic and devastating impact on indigenous people.1 Sadly,
many of humanity’s oldest people face the loss of their traditional homelands and the
extinction of their people as early as 2050,2 which represents one of the greatest
losses and tragedies to the human family and one of the most serious crimes in
human history. The aim of this article is to therefore critically examine the impact of
climate change on indigenous people and to assess the legal rights available to those
communities to seek redress. Part 1 of the paper shall examine the catastrophic and
devastating impact of climate change on indigenous people. Part 2 of the article shall
provide a survey of the most recent legal decisions at a national, regional and
international level and provide an analysis of the emerging academic commentary in
the field. Part 3 of the article shall critically examine the major historical,
philosophical and institutional limitations of the Western juridical tradition to protect
and uphold the rights of indigenous people. As such, the focus of the paper is strictly
on litigation and it does not engage with the vitally important issues of policy,
mitigation and adaptation, from which, in any case, indigenous people have been
largely excluded.3 While there have been positive developments in case law, the
literature reveals that climate change litigation offers little hope for indigenous
people. The article will conclude by arguing that current domestic and international
legal systems as presently constructed are incapable of protecting the unique rights of
indigenous people and culminates in a call for the establishment of an International
Court for Human Rights and an International Court for the Environment to prevent
the destruction of the traditional homelands of indigenous people and the extinction
of humanity’s oldest people.
Keywords: climate change; indigenous rights; national, regional and international law
We express our solidarity as Indigenous Peoples living in areas that are the most vulnerable to
the impacts and root causes of climate change. We reaffirm the unbreakable and sacred connec-
tion between land, air, water, oceans, forests, sea ice, plants, animals and our human commu-
nities as the material and spiritual basis for our existence. We are deeply alarmed by the
accelerating climate devastation brought about by unsustainable development. We are experi-
encing profound and disproportionate adverse impacts on our cultures, human and environ-
mental health, human rights, well-being, traditional livelihoods, food systems and food
sovereignty, local infrastructure, economic viability, and our very survival as Indigenous
Peoples. Mother Earth is no longer in a period of climate change, but in climate crisis. We
∗
Email: jay1@bigpond.net.au
ISSN 1364-2987 print/ISSN 1744-053X online

# 2012 Taylor & Francis
http://dx.doi.org/10.1080/13642987.2011.632135
http://www.tandfonline.com
The International Journal of Human Rights 649
therefore insist on an immediate end to the destruction and desecration of the elements of life.
(The Anchorage Declaration from the Indigenous Peoples’ Global Summit on Climate Change,
24 April 2009)4
Introduction
Climate change is one of the most significant humanitarian, environmental, social, econ-
omic and legal issues of our time.5 The scientific evidence is overwhelming and undeniable:
climate change will have a catastrophic and devastating impact on indigenous people.6
Whether it is the Indian tribes of the Amazon rainforests,7 the indigenous people of the
Torres Strait,8 or the Inuit people of the Arctic,9 indigenous people, communities and
nations around the globe will face the catastrophic and devastating impact of climate
change. Sadly many of humanity’s oldest people face the loss of their traditional homelands
and the extinction of their people as early as 2050.10
In light of this, for over three decades, the international scientific community has repeat-
edly warned governments, industry and the international community that carbon pollution
and climate change are anthropogenic and industrial; that carbon pollution and climate
change pose a catastrophic and devastating threat to humanity at large and indigenous
people in particular; yet governments, industry and the international community have con-
tinually failed to act to prohibit carbon pollution and climate change, in full knowledge and
disregard of the catastrophic impact of their behaviour.11
Given the devastating impact of climate change on indigenous people and given the
failure of governments, industry and the international community to prohibit carbon pol-
lution, what legal rights exists for indigenous people, communities and nations to seek
redress for the wanton destruction of their traditional homelands and the extinction of
their people? Moreover, given the dependence of indigenous people on their traditional
homelands for the survival of their physical, spiritual and cultural existence, does the
wanton destruction of their traditional homelands constitute cultural genocide or a crime
against humanity under international criminal law?
It is the contention of this paper that while it may be impossible to establish under the
strict tests of international criminal law; the wanton destruction of the traditional homelands
of indigenous people and the extinction of their people by climate change does constitute
cultural genocide and amounts to one of the most serious crimes in our human history. As
such, the impending extinction of indigenous people and the destruction of their land rep-
resent one of the greatest losses and tragedies to the human family.
Given this, the legal and academic literature has been extremely pessimistic regarding
the prospects of success for indigenous people commencing climate change litigation.12
This is largely based on the strict legal issues of standing, jurisdiction, identification of
the appropriate defendant, the requirement of dolus specialis, questions over duties of
care, foreseeability, causation, remoteness, the non-justiciability of political decisions and
in general the negative results achieved thus far in the field of climate change litigation.13
While the literature reveals that climate change will devastate indigenous people, litigation
offers little hope for indigenous people to seek redress.
Nonetheless, the emerging academic commentary has been vitally important in terms of
highlighting the strict legal deficiencies of Western legal systems and the relative merits of
the human rights approach. However, it does not address the more profound historical, phi-
losophical and institutional deficiencies of the Western juridical tradition to protect and
uphold indigenous rights at a national, regional or international level.
650 J. Williams
The research will therefore attempt to build on the existing literature by bringing
together the analysis across different disciplines, fora and jurisdictions of law to highlight
the major limitations of the Western juridical tradition and to forge alternative legal
approaches to protect and uphold the rights of indigenous people to stave off one of the
greatest human tragedies and environmental catastrophes.
The paper shall conclude by arguing that the current domestic and international legal
systems as presently constructed are incapable of protecting the unique rights of indigenous
people and will call for the establishment of an International Court for Human Rights and an
International Court for the Environment to prevent the destruction of the traditional home-
lands of indigenous people and the extinction of their people.
Part 1: The impact of climate change on indigenous people

omic and legal issues of our time.14 The scientific evidence is overwhelming and undeni-
able: carbon pollution is a serious global threat and demands an urgent global response. The
Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC
2007)15 predicts that there will be an average global rise in temperature of 1.48C (2.58F)
to 5.88C (10.48F) between 1990 and 2100.16 As a result, billions of people will face the
catastrophic and devastating impact of climate change.17
In particular, climate change poses a catastrophic threat to indigenous people, commu-
nities and nations, including the decimation of their hunting, gathering and fishing tra-
ditional homelands, the desertification, deforestation and flooding of their traditional
homelands, total ecosystem collapse, flora, fauna and species extinction, food and water
shortages, famine and disease, forced population transfers and great social and economic
dislocation.18
Scientific evidence suggests that the livelihoods and cultural identities of the more than
370 million indigenous peoples of North America, Europe, Latin America, Africa, Asia and
the Pacific are already under threat.19 It is estimated that 60 million indigenous people are
completely dependent on forests, 350 million people are highly dependent and 1.2 billion
have some dependence on forests for their livelihoods.20 As a result, it is estimated that over
150 million environmental refugees will emerge as carbon pollution and climate change
become more pronounced.21
Africa
According to the IPCC, Africa is the most vulnerable continent to climate change and will
suffer high rates of water stress and famine, dramatic reductions in agricultural production,
extreme weather conditions, including flood and drought, higher rates of disease and
increased conflict over scarce resources.22 It is projected that large regions of Africa will
experience warming in the range of 3 to 68C by 2100 with temperatures potentially
rising to 78C in southern Africa and 88C in northern Africa, almost double the global
average.23 Scientists predict that there will be significant precipitation changes, with a 20
per cent reduction compared to 1990 levels.24 As a result, 75– 250 million by 2020 and
350 –600 million people by 2050 will suffer water stress.25 Projected reductions in agricul-
tural yields could be as much as 50 per cent by 2020, and crop net revenues could fall by as
much as 90 per cent by 2100.26 It is estimated that, by 2080, the proportion of arid and semi-
arid lands in Africa is likely to increase by five to eight per cent.27 Vector- and water-borne
diseases such as malaria, dengue fever and cholera will increase.28 An additional 67 million
people in Africa could be at risk of malaria epidemics by the 2080s.29 Between 25 per cent
and 40 per cent of mammal species in national parks in sub-Saharan Africa will become
endangered.30 Sea level rise will threaten more than a quarter of Africa’s population who
live within 100 kilometres of the coast, with the number of people at risk from coastal flood-
ing increasing from one million in 1990 to 70 million by 2080.31 The cost of adaptation is
estimated to be five to 10 per cent of gross domestic product.32
Currently, the Horn of Africa is experiencing the worst drought in over 60 years and the
failure of rains in two seasons has caused a severe famine affecting approximately 10
million people in Somalia, Kenya, Ethiopia and Djibouti, in what has been described as
the worst humanitarian disaster in human history.33
Asia
New evidence shows that climate change has affected many areas in Asia.34 An additional
49 million, 132 million and 266 million people of Asia, could be at risk of hunger by 2020,
2050 and 2080.35 A 2.5 – 10 per cent decrease in crop yield is projected for parts of Asia by
2020 and five to 30 per cent decrease by 2050, compared with 1990 levels.36 Freshwater
availability in Central, South, East and South-East Asia is likely to decrease due to
climate change, which could adversely affect more than a billion people by 2050.37 It is
estimated that 120 million – 1.2 billion people will experience increased water stress by
2020, and 185 – 981 million people by 2050.38 Projected sea-level rise will result in signifi-
cant losses of coastal ecosystems and a million or so people along the coasts of South and
South-East Asia will be inundated by flooding.39 Increases in endemic morbidity and mor-
tality due to diarrhoeal disease primarily associated with climate change are expected in
South and South-East Asia.40 Increases in coastal water temperature would exacerbate
the abundance and/or toxicity of cholera in South Asia.41 Natural habitats of vector-
borne and water-borne diseases in North Asia are likely to expand in the future.42 Acceler-
ated glacier melt is likely to cause an increase in the number and severity of glacial melt-
related floods, slope destabilisation and a decrease in river flows.43 Recent risk analysis of
coral reefs suggests that 24– 30 per cent of the reefs in Asia are likely to be lost during the
next 10 –30 years.44 Increased risk of extinction for many flora and fauna species in Asia is
likely as a result of climate change.45 The frequency and extent of forest fires in Northern
Asia is likely to increase in the future due to climate change.46
Australia and New Zealand

Since 1950, there has been 0.4 – 0.78C warming, with climate change causing record heat-
waves, fewer frosts, more rain in north-west Australia and south-west New Zealand, less
rain in southern and eastern Australia and north-eastern New Zealand, an increase in the
intensity of Australian droughts and a rise in sea level of about 70 mm.47 The changes
have resulted in increasing stresses on water supplies and agriculture, natural ecosystems,
reduced seasonal snow cover, and glacier shrinkage and substantial economic losses caused
by droughts, floods, fire, tropical cyclones and hail.48 Heatwaves and fires are virtually
certain to increase in intensity and frequency.49 Floods, landslides, droughts and storm
surges are very likely to become more frequent and intense, and snow and frost will
become less frequent.50 As a result of reduced precipitation and increased evaporation,
water security problems are projected to intensify by 2030. Production from agriculture
and forestry is projected to decline by 2030 over much of southern and eastern Australia,
and over parts of eastern New Zealand, due to increased drought and fire.51 Natural
652 J. Williams
systems have limited adaptive capacity and projected rates of climate change are very likely
to exceed rates of evolutionary adaptation in many species.52 Habitat loss and fragmenta-
tion are very likely.53 Vulnerability is likely to be high by 2050 in the following identified
hotspots, in Australia, the Great Barrier Reef, eastern Queensland, the South-West, Murray-
Darling Basin, the Alps and Kakadu wetlands; in New Zealand, these include the Bay of
Plenty, Northland, eastern regions and the Southern Alps and the sub-Antarctic islands,
and alpine areas of both countries.54
Climate change particularly affects indigenous people in the north. These include low-
lying areas of the Torres Strait Islands and shores of the Gulf of Carpentaria that are vulner-
able to sea-level rise, coastal erosion and storm surges; the Kimberley coastal and inland
communities that are vulnerable to increased intensity and frequency of cyclones; Cape
York communities facing biodiversity loss in tropical rainforests and increased coral
bleaching on the Great Barrier Reef; and communities in central regions across the conti-
nent, which face the largest projected temperature increases.55
Europe
Scientific modelling predicts significant warming, greater in winter in the North and in
summer in southern and central Europe.56 Mean annual precipitation is projected to
increase in the North and decrease in the South.57 Water stress will increase over central
and southern Europe from 19– 35 per cent by 2070, affecting between 16 million and 44
million people.58 The most affected regions are southern Europe and some parts of
central and Eastern Europe, where summer flows may be reduced by up to 80 per cent.59
Crop productivity is likely to increase in northern Europe, and decrease along the Mediter-
ranean and in south-eastern Europe.60 Winter floods are likely to increase in maritime
regions and flash floods are likely to increase throughout Europe.61 Coastal flooding
related to increasing storms and sea-level rise is likely to threaten up to 1.6 million
additional people annually.62 Warmer, drier conditions will lead to more frequent and pro-
longed droughts, as well as to a longer fire season.63 During dry years, catastrophic fires are
expected.64 Risks to health, due to more frequent heatwaves, particularly in central and
southern Europe, and flooding, and greater exposure to vector- and food-borne diseases
are anticipated to increase.65 It is anticipated that Europe’s natural ecosystems and biodiver-
sity will be substantially affected by climate change and the great majority of organisms and
ecosystems are likely to have difficulty in adapting to climate change.66 Small glaciers will
disappear and larger glaciers will substantially shrink during the twenty-first century.67 A
large percentage of the European flora is likely to become vulnerable, endangered, or com-
mitted to extinction by the end of this century.68
Central and South America

The projected mean warming for Latin America to the end of the century ranges from 1 to
68C.69 The number of additional people at risk of hunger is likely to reach five, 26 and 85
million in 2020, 2050 and 2080. By 2020, the net increase in the number of people experi-
encing water stress due to climate change is likely to be between seven and 77 million or as
high as 60 and 150 million.70 Highly unusual extreme weather events were reported, such
as intense Venezuelan rainfall (1999, 2005), flooding in the Argentinean Pampas (2000 –
2002), the Amazon drought (2005), hail storms in Bolivia (2002) and the Great Buenos
Aires area (2006), the unprecedented Hurricane Catarina in the South Atlantic (2004)
and the record hurricane season of 2005 in the Caribbean Basin. As a consequence of
temperature increases, the trend in glacier retreat reported in the Third Assessment Report is
accelerating.71 Over the next decades Andean inter-tropical glaciers are very likely to dis-
appear, affecting water availability. In particular, rates of deforestation of tropical forests
have increased during the last five years.72 There is a risk of significant species extinctions
in many areas of tropical Latin America.73 By the 2050s, 50 per cent of agricultural lands
are very likely to be subjected to desertification and salination.74 Seven out of the 25 most
critical places with high endemic species concentrations are in Latin America and these
areas are undergoing habitat loss.75 The expected increases in sea-level rise, weather and
climatic variability and extremes are very likely to affect coastal areas.76 In Columbia,
the UN Special Rapporteur on Fundamental Freedoms of Indigenous People concluded
on his last visit that 10 of Colombia’s 92 indigenous groups were in danger of extinction
and that 42 per cent of those groups may only contain between 50 and 2000 people.77
North America
North America has experienced severe economic damage, plus substantial ecosystem,
social and cultural disruption from recent weather-related extremes, including hurricanes,
severe storms, floods, droughts, heatwaves and wildfires.78 Especially vulnerable groups
include indigenous peoples and those who are socially or economically disadvantaged.79
The sea level is rising along much of the coast and storm impacts are likely to be more
severe, especially along the Gulf and Atlantic coasts.80 Climate change will constrain
North America’s over-allocated water resources, increasing competition among agricul-
tural, municipal, industrial and ecological uses.81 Rising temperatures will diminish snow-
pack and increase evaporation, affecting seasonal availability of water.82 Hot temperatures
and extreme weather are likely to cause increased adverse health impacts from heat-related
mortality, pollution, storm-related fatalities and injuries, and infectious diseases. Water-
borne diseases and degraded water quality are very likely to increase with more heavy pre-
cipitation.83 Climate change is likely to increase risk and geographic spread of vector-borne
infectious diseases, including Lyme disease and West Nile virus.84 Warmer summer temp-
eratures are expected to extend the annual window of high fire ignition risk by 10– 30 per
cent, and could result in increased area burned of 74– 118 per cent in Canada by 2100.85
In North America, approximately 1.2 million tribal members live on or near reser-
vations which depend heavily on agriculture, forest products and tourism.86 The Wisconsin
and the Great Lakes region are home to some of the best-managed indigenous forestlands,
wild rice beds, and fisheries in the United States, all of which are in danger due to climate
change.87
The Arctic and Antarctic

In both polar regions, there is strong evidence of the ongoing impacts of climate change on
terrestrial and freshwater species, communities and ecosystems.88 Freshwater and ice flows
into polar oceans have a direct impact on sea level.89 In the Arctic, there has been increased
Eurasian river discharge to the Arctic Ocean and continued declines in the ice volume of
Arctic and sub-Arctic glaciers and the Greenland ice sheet.90 These combined effects
will impact freshwater, riparian and near-shore marine systems around the Arctic and on
sub-Antarctic islands.91 Continued changes in sea-ice extent, warming and acidification
of the polar oceans are likely to further impact the biomass and community composition
of marine biota as well as Arctic human activities.92 Impacts on food accessibility and avail-
ability, and personal safety are leading to changes in resource and wildlife management.93
654 J. Williams
Substantial investments will be needed to adapt or relocate physical structures and

communities.94
In the Arctic, there are approximately 400,000 indigenous people, who depend on
hunting for polar bears, walrus, seals and caribou, herding reindeer, fishing and gathering
not only for food to support the local economy, but also as the basis for their cultural and
spiritual identity.95 In several indigenous villages in Alaska, entire communities may have
to relocate because of erosion due to the thawing of permafrost and storm surge. Up to 80
per cent of Alaskan communities, comprised mainly of indigenous peoples, are vulner-
able.96 As Nobel Prize nominee Sheila Watt-Cloutier observed, the Arctic is the world’s
barometer of climate change and the Inuit are the mercury.97
Small islands
Small islands, whether located in the tropics or higher latitudes, have characteristics which
make them especially vulnerable to the effects of climate change, sea-level rise and extreme
events. Sea-level rise is expected to exacerbate inundation, storm surge, erosion and other
coastal hazards.98 In the Pacific region, coastal erosion, high tides and stormy seas are threa-
tening the existence of Tuvalu, Kiribati, the Marshall Islands, Cook Islands and the low-
lying islands of Papua New Guinea.99 In the Caribbean and Pacific islands, more than
50 per cent of the population live within 1.5 km of the shore.100 In the Pacific, a 10 per
cent reduction in average rainfall by 2050 would lead to a 20 per cent reduction in the
size of the freshwater lens on Tarawa Atoll, Kiribati.101 Subsistence and commercial agri-
culture on small islands will be adversely affected by climate change.102 Many small islands
are located in tropical or sub-tropical zones whose weather and climate are already condu-
cive to the transmission of diseases such as malaria, dengue, filariasis, schistosomiasis, and
food- and water-borne diseases.103 Other climate-sensitive diseases of concern to small
islands include diarrhoeal diseases, heat stress, skin diseases, acute respiratory infections
and asthma.104
Combating climate change – the legal rights of indigenous people

In light of this, for over three decades, the international scientific community has repeatedly
warned governments, industry and the international community that the cause of carbon
pollution and climate change is anthropogenic and industrial; that climate change poses a
catastrophic and devastating threat to humanity at large and indigenous people in particular;
yet governments, industry and the international community have continually failed to act to
prohibit carbon pollution and climate change, in full knowledge and disregard of the cata-
strophic impact of their behaviour.105
Given the devastating impact of climate change on indigenous people and given the
failure of governments, industry and the international community to prohibit carbon pol-
lution, what legal rights exists for indigenous people, communities and nations to seek
redress for the wanton destruction of their traditional homelands and the extinction of
their people? Moreover, given the dependence of indigenous people on their traditional
homelands for the survival of their physical, spiritual and cultural existence, does the
wanton destruction of their traditional homelands constitute cultural genocide or a crime
against humanity under international criminal law? The following section shall examine
the national, regional and international avenues open to indigenous people to seek
redress for the catastrophic impact of climate change.
Part 2: The national avenues

(i) Administrative law – Massachusetts v. EPA 549 US 1 (2007)
In Massachusetts v. EPA106 arguably the single most important breakthrough in US climate
change litigation, the State of Massachusetts, together with 11 other states, three cities, two
Unites States territories and several environmental groups sought review of the decision by
the Environment Protection Agency (EPA) not to regulate the emissions of four greenhouse
gases, including carbon dioxide, under s 202(a)(1) of the Clean Air Act 2004 (US). By a 5 – 4
decision,107 the Supreme Court held that greenhouse gas emissions ‘fit well within the Clean
Air Act’s capacious definition of “air pollutant”, and should be regulated by the EPA’.108
The decision was significant for a number of reasons.109 First, the Supreme Court held
that the State of Massachusetts had standing and that the case ‘suffered none of the defects
that would preclude it from being a justiciable Article III controversy’.110 Contrary to the
EPA’s argument, the standing doctrine presented ‘no insuperable jurisdictional obstacle’
and that ‘the proper construction of a congressional statute is an eminently suitable question
for federal-court resolution, and Congress has authorized precisely this type of challenge to
EPA action’.111
Second, the court held that ‘the harms associated with climate change are serious and
well recognized’ and that ‘a strong consensus among qualified experts indicate that
global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible
changes to natural ecosystems, a significant reduction in winter snowpack with direct and
important economic consequences, and increases in the spread of disease and the ferocity of
weather events’. Remediation costs alone, ‘could reach hundreds of millions of dollars’.112
Finally, given the EPA’s failure to dispute the existence of a causal connection between
man-made greenhouse gas emissions and global warming, ‘its refusal to regulate such emis-
sions, at a minimum, “contributes” to Massachusetts’ injuries’.113 As such, the court found
that the rejection by the EPA rule-making petition was therefore ‘arbitrary, capricious, or
otherwise not in accordance with law’.114
For these reasons, Massachusetts is a significant administrative and environmental law
case with major political consequences. According to Freeman and Vermeule, ‘the immedi-
ate symbolism of the case was that the court nudged the federal government into action on
the most consequential regulatory question of the day’.115 As a result of Massachusetts,
climate change litigation proliferated with over 130 climate change cases filed as at 31
December 2009, compared with only 18 climate cases before 2006.116
(ii) Public nuisance

American Electric Power Company, Inc. v. Connecticut No. 10-174, 564 US (2011)
In Connecticut v. American Electric Power,117 8 states,118 the City of New York, and three
conservation organisations,119 filed suit in the Federal District Court against the nation’s
largest electric power producers,120 in July 2004.121 According to the complaints, the defen-
dant companies were ‘the five largest emitters of carbon dioxide in the United States’,
which were responsible for ‘an estimated 650 million tons of carbon dioxide emissions
each year’, constituting approximately ‘10 percent of US emissions and 2.5 percent of
all anthropogenic GHG emissions worldwide’.122 The plaintiffs alleged that the power
companies’ greenhouse gas emissions constituted interstate public nuisance under federal
common law or in the alternative, state law,123 and sought an injunction requiring the defen-
dant power companies ‘to cap their carbon dioxide emissions and then reduce them by a
specified percentage each year for at least a decade’.124
656 J. Williams
The District Court dismissed the action on grounds of non-justiciability of policy

decisions.125 Insofar as climate change was an important matter of national, if not inter-
national policy, the court concluded, ‘it was a question best left to the political branches’.126
However, in September 2009, the Second Circuit Court of Appeals reversed the District
Court decision, granted certiorari and reinstated the case. The panel found that the District
Court had erred in dismissing the complaint on political question grounds, concluding that
all of the plaintiffs had standing and that they had claims under the federal common law of
nuisance.127 The Second Circuit rejected the defendant’s displacement claim, holding that
the EPA had not yet begun to exercise its authority to regulate greenhouse gas emissions
and as such, the states’ nuisance claims had not been displaced.128
Given this, on 20 June 2011, the US Supreme Court handed down its decision and
affirmed by an equally divided vote of four to four, the Second Circuit’s decision that
the plaintiffs had standing to sue,129 but then reversed the Second Circuit’s ruling by a
vote of eight to zero,130 holding that ‘the Clean Air Act and the EPA actions it authorizes
displace any federal common law right to seek abatement of carbon-dioxide emissions from
fossil-fuelled fired power plants’.131 As none of the parties briefed pre-emption or the avail-
ability of a claim under state nuisance law, the matter was left for consideration on
remand.132
There are significant implications which flow from the decision. First, while the
decision effectively bars actions under the federal common law of nuisance, the Supreme
Court did not consider whether the Clean Air Act pre-empts public nuisance under state
common law. This issue was remanded for determination by the same two-judge panel
on the Second Circuit that issued the original decision. As the court observed, ‘the test
for pre-emption is more stringent than displacement’,133 and it is therefore probable that
the case could return to the Supreme Court on the pre-emption issue in the coming years.
Second, the defences of standing and the political question doctrine commonly used by
defendants in similar actions have been significantly weakened by the decision. The court
affirmed the Second Circuit’s ruling, by an equally divided court, that the plaintiffs had
Article III standing. Similarly, the court did not specifically examine the political question doc-
trine other than noting that ‘no other threshold obstacle bars review’.134 While the political
question doctrine in many ways overlaps with displacement, one may reasonably conclude
that the court affirmed the Second Circuit’s decision rejecting the political question doctrine.
Finally, the court qualified the displacement principle by making clear that ‘If the EPA
does not set emissions limits for a particular pollutant or source of pollution, States and
private parties may petition for a rulemaking on the matter and EPA’s response will be
reviewable in federal court.’135 The court also held that while the EPA theoretically has
the power to decline to regulate carbon dioxide emissions from power plants, such a judge-
ment ‘would not escape judicial review’,136 that the EPA does not have a ‘roving license to
ignore the statutory text’,137 and that the EPA can only decline to regulate if refusal to act
would not be ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance
with law’.138 According to Adler, ‘while AEP was undoubtedly a victory for corporate
defendants, the Supreme Court’s ruling does not mean the states and conservation
groups are left without legal remedy’.139
(iii) Tort – diversity action

Comer v. Murphy Oil, No. 1:05-CV-436 (SD Miss., 18 April 2006)
In Comer v. Murphy Oil,140 Comer and 13 individuals harmed by Hurricane Katrina in the
United States commenced a negligence action against nine oil companies, 31 coal
companies and four chemical companies.141 The plaintiffs alleged that the defendants had
‘a duty to conduct their business in such a way as to avoid unreasonably endangering the
environment, public health and public and private property, as well as the citizens of Mis-
sissippi’ and that they breached their duty ‘by emitting substantial quantities of greenhouse
gases, knowing such emissions would unreasonably endanger the environment, public
health, and public and private property interests’.142 In a diversity action, the plaintiffs
sought damages rather than an injunction, under state common law, based on private and
public nuisance, trespass, negligence, unjust enrichment, fraudulent misrepresentation
and civil conspiracy.143
The District Court dismissed the claim summarily on the defendant’s motion stating that
the plaintiffs did not have standing and that the claims were non-justiciable pursuant to the
political question doctrine.144 On appeal and only a month after the Second Circuit issued
its opinion in AEP, a panel of the United States Court of Appeals for the Fifth Circuit over-
turned the order by the District Court,145 holding that the plaintiffs had standing to bring the
public and private nuisance, trespass and negligence claims and that none of those claims
presented non-justiciable political questions.146 The court dismissed the unjust enrichment,
fraudulent misrepresentation and civil conspiracy claim for prudential standing reasons.147
With regard to standing, the defendants did not contest the first and third standing
requirements, they being, injury in fact and redressability, so the court focused its analysis
primarily on the second factor, causation.148 While the defendants argued that the chain of
causation between their emission of greenhouses gases and the plaintiffs’ injuries from Hur-
ricane Katrina was attenuated, the court held that the connection for standing ‘need not be as
close as the proximate causation needed to succeed on the merits of a tort claim’, and that
‘an indirect causal relationship is sufficient for standing as long as there is a fairly traceable
connection between the defendant’s conduct and the plaintiff’s injury’.149
With regard to the political questions doctrine, the Fifth Circuit panel held that it does
not preclude a court from reviewing disputes merely because they have political impli-
cations or ramifications.150
Since the defendants did not identify any constitutional provision or federal law that com-
mitted the issues in the case to the political branches, the court did not apply the Baker test.151
The court also observed that ‘common law tort claims are rarely thought to present non-jus-
ticiable political questions’, and that ‘claims for damages are considerably less likely to
present non-justiciable political questions, compared with claims for injunctive relief’.152
According to Johnson, ‘Although the Fifth Circuit panel’s decision in Comer seemed to
brighten prospects for an expansion of tort actions to address broad environmental pro-
blems’, the Fifth Circuit vacated the decision in March 2010, when it agreed to rehear
the appeal en banc.153 The outcome of the rehearing is therefore highly important to the
future of climate change litigation.
(iv) Conspiracy
Kivalina v. ExxonMobil Corporation 663 F.Supp. 2d 863 (ND Cal. 2009)
In Kivalina v. ExxonMobil,154 the governing body of the native Inupiat village of Kivalina
in Alaska commenced action against 24 oil, energy and utility companies,155 alleging that
greenhouse gas emissions and climate change has diminished Arctic ice which has forced
the Kivalina people and their village to be relocated or abandoned.156 The plaintiffs based
their claims on federal public nuisance law and in the alternative, state public and private
nuisance law, civil conspiracy and concert of action,157 and sought money damages,
658 J. Williams
rather than an injunction, alleging that the relocation of the city could cost as much as 400
million dollars.158
However, the United States District Court for the Northern District of California dis-
missed the claim on 30 September 2009 for lack of standing, subject matter, jurisdiction,
causation, remoteness and the political question doctrine.159 Unlike the panel in the Cali-
fornia case, the Kivalina panel determined that the plaintiffs’ claims were not inconsistent
with the first element of the Baker test, in that the issue in the case was not textually com-
mitted to another branch.160 However, the panel concluded, under the second and third
elements of the Baker test, that the court lacked judicially discoverable and manageable
factors to decide the case and that the issue required an initial policy determination by
the legislative or executive branch.161 Like the California panel, the Kivalina panel
argued that the court could not balance the gravity of the harm caused by the defendants’
actions against the utility of the conduct to determine whether the conduct was ‘unreason-
able’ as required for a nuisance action, without additional standards.162

After finding the plaintiffs’ claims non-justiciable, the court also determined that the
plaintiffs lacked standing to sue.163 The court rejected the plaintiffs’ claim that they only
needed to demonstrate that the defendants contributed to their injury in order to establish
standing at the early stages of litigation.164 Contrary to the approach taken by the United
States Courts of Appeals for the Second and Fifth Circuits, the District Court panel in Kiva-
lina held that the plaintiffs must allege that the defendants’ conduct was the ‘seed of [its]
injury’ and that ‘the plaintiffs’ claim must fail if the defendants can identify alternative
sources of the plaintiffs’ injury’.165 Since global climate change is caused by a variety of
different sources, the panel concluded that the plaintiffs were not able to demonstrate
that the defendants’ actions caused their injuries.166 Since the court dismissed the federal
claims, they also dismissed the state common law claims.167 The plaintiffs have appealed
the decision to the Ninth Circuit.168
Given this, two American Supreme Courts of Appeal have examined the standing
and political question issues on the merits in the Second Circuit in American Electrical
Power and the Fifth Circuit in Comer, which have been decided in favour of the plain-
tiffs.169 The Ninth Circuit is facing the same issues on appeal from a District Court
ruling in Kivalina. Importantly, all four actions in the District Courts were thrown out
on standing and the political question doctrine, however two courts of appeals have
reached opposite conclusions.170 Arguably, the decisions signal that large emitters
may be potentially liable for climate change. The decisions also place pressure on leg-
islatures to pass comprehensive climate legislation or face climate change litigation.
According to a recent article by the Environmental Law Institute, ‘[w]hile these issues
are by no means settled, the decisions demonstrate how centuries old, common law
legal doctrines are capable of adapting to the complex environmental challenges of
the twenty-first century’.171
(vi) Constitutional law

Increasingly, constitutional law has emerged as an important avenue to protect human
rights and the environment. In India, the right to life172 has been held to include the
right to clear air and water, free from pollution for the full enjoyment of life, according
to the principles of sustainable development and intergenerational equity.173 In Pakistan,
the right to life174 has been held to include the right to a clean atmosphere and an unpol-
luted environment.175 In Kenya, the right to life176 has been held to include a ‘wholesome
environment in which to live’.177 In the Philippines, the right to a balanced and healthful
ecology178 has been held to be ‘a deduction from, if not a reiteration of, the constitutional
right to life provision’.179
Jonah Gbemre v. Shell Petroleum Development Company of Nigeria Ltd and Others
(Suit No. FHC/B/CS/53/05, 14 November 2005) Federal High Court of Nigeria, Benin
Judicial Division
In 2005, the Federal High Court of Nigeria held that the widespread practice of gas
flaring by Shell in the Niger Delta was in violation of the fundamental human rights guar-
anteed by the constitution. Nigeria is the world’s second largest gas flarer,180 which emits
more greenhouse gas than sub-Saharan Africa combined and costs approximately US$2.5
billion annually,181 while more than 66 per cent of the population live on less than US$1
a day.182
On 21 July 2005, the Federal High Court of Nigeria granted leave to the applicant,
Jonah Gbemre representing the members of the Iwherekan Community of Delta state of
Nigeria, to commence action seeking declarative and injunctive relief against the respon-
dents who had allegedly engaged in ‘massive, relentless and continuous gas flaring in
their community’.183 It was alleged that this had resulted in ‘the emission of carbon-
dioxide, green house gases and a cocktail of toxins’, which had ‘poisoned and polluted
the environment. . .’ it had ‘exposed members of the community to premature death, respir-
atory illness, asthmas and cancer. . .’ and it had ‘contributed to adverse climate change’.184
This, it was alleged, had caused ‘painful breathing, chronic bronchitis, decreased lung func-
tion and death’, as well as ‘reduced crop production’ which had ‘adversely impacted on
their food security’ and caused ‘acid rain’, which had ‘acidified the lakes and streams
and damaged their vegetation’.185
On 14 November 2005, the Federal High Court of Nigeria declared that ‘the respon-
dents in continuing to flare gas in the course of their oil exploration and production activi-
ties’, was a ‘violation of their fundamental rights to life, including a healthy environment’,
and ‘dignity of the human person’ guaranteed by sections 33(1) and 34(1) of the Consti-
tution of the Federal Republic of Nigeria, 1999, and reinforced by Articles 4, 16 and 24
of the African Charter on Human and Peoples Rights 2004,186 which ‘inevitably includes
the right to clean poison-free, pollution-free and a healthy environment’.187
According to Sinden, this may be the first court ruling anywhere in the world to suggest
that there is a human right to security from climate change; ‘The Gbemre case holds out
hope that the recognition of a human right to security from climate change may provide
a vehicle for courts to issue orders that begin to nudge those actors responsible for substan-
tial greenhouse gas emissions toward more responsible behaviour.’188 Importantly,
‘Gbemre suggests how treating climate change as a human rights issue may serve to
imbue it with a sense of gravity and moral urgency that has been too often missing from
the public debate’.189
Part 3: The regional avenues

(i) The European Court of Human Rights (ECtHR)
Although the European Convention on Human Rights does not affirmatively guarantee a
right to the environment, the European Court of Human Rights has held states accountable
for human rights violations resulting from environmental damage in a number of cases.190
Lopez Ostra v. Spain, Application no. 16798/90 1994 ECHR 46 (9 December 1994)
In Lopez Ostra v. Spain,191 Gregoria López Ostra filed a report before the European Com-
mission on Human Rights against the Spanish state on 14 May 1990, claiming that Spain
660 J. Williams
had failed to take any measures against the smell, noise and contaminating smoke from a
solid and liquid waste treatment plant located a few metres away from her home, in viola-
tion of Article 3, the right to physical integrity, and Article 8, respect for the home and
private life, under the European Convention on Human Rights.
On 31 August 1993, the Commission found there was a violation of the right to respect
for the home and private life, but not of the right to physical integrity.192 In December of the
same year, the Commission referred the case to the ECtHR, which affirmed the findings of
the Commission. The ECtHR found that ‘severe environmental pollution may affect indi-
viduals’ well-being and prevent them from enjoying their homes in such a way as to affect
their private and family life adversely, without, however, seriously endangering their
health’.193 However, the ECtHR found that there was no violation of Article 3 of the Con-
vention, ruling that ‘the conditions in which the applicant and her family lived for a number
of years were certainly very difficult but did not amount to degrading treatment within the
meaning of Article 3’.194 The ECtHR ordered the state to pay four million pesetas for
damages and 1.5 million pesetas for costs.195
Okyay v. Turkey, Application No. 36220/97, ECtHR 1997-II

By petitions of 16 April 1993, 28 April 1993 and 11 February 1994, the applicants called on
the Ministries of Health, of the Environment and of Energy and Natural Resources, the
public utility company Turkiye Elektrik Kurumu (TEAŞ) and the Muğla provincial gover-
nor to take action to halt the operation of the Gökova, Yatağan and Yeniköy thermal power
plants. In particular, the applicants claimed that the three power plants had failed to obtain
the requisite licences, that the emissions had caused pollution and harmed the region’s bio-
logical diversity and that their operation constituted a danger to public health and to the
environment.196 The applicants argued that it was their constitutional right to live in a
healthy and balanced environment and their duty to ensure the protection of the environ-
ment and to prevent environmental pollution, under Article 56 of the Constitution and
section 3(a) of the Environment Act.197
On 20 June 1996 the Aydın Administrative Court issued an interlocutory injunction for
suspension of the power plants’ operation. By decisions of 3 June 1998 and 6 June 1998,
the Supreme Administrative Court upheld the above-mentioned three judgements of the
Aydın Administrative Court.198 By a decision of 3 September 1996, the Council of Minis-
ters, composed of the prime minister and other cabinet ministers, decided that the three
thermal power plants should continue to operate, despite the administrative courts’
judgements.199
As a result, in Okyay v. Turkey,200 the ECtHR found that Turkey had violated Article 6
of the Convention, ruling that the applicant’s right to a fair hearing had been breached due to
the failure by the relevant authorities to enforce the administrative courts’ orders to stop the
operation of the Yatağan, Gökova and Yeniköy thermal power plants.201
Budayeva and others v. Russia, Applications nos 15339/02, 21166/02, 20058/02, 11673/
02 and 15343/02, judgement of 20 March 2008
In Budayeva v. Russia,202 a mudslide swept through Tyrnauz, a town situated in a mountai-
nous region in the central Caucasus, killing several people and destroying many buildings
in July 2000. The mudslide was triggered by the Gerhozhansu River which runs through the
town and was the last in a long series of similar events. Tyrnauz had been protected by
various mud retention dams, which were badly damaged by particularly heavy mudslides
in 1999 and never repaired, despite warnings by the state meteorological institute. Two
weeks earlier the agency had informed the local Ministry for Disaster Relief about the
imminent danger of a new disaster and that an emergency warning be issued if necessary.
None of the proposed measures were taken. It was then that the main mudslide hit the town
and eight people were killed.203
The applicants alleged that ‘the national authorities were responsible for the death of
Mr Budayev, for putting their lives at risk and for the destruction of their property’, as a
result of ‘the authorities’ failure to mitigate the consequences of a mudslide’, in contraven-
tion of Article 2, the right to life, Article 8, the right to respect for private and family life,
Article 13, the right to an effective remedy and under Article 1 of Protocol No. 1 to the
Convention, the protection of property.204
The court reiterated that ‘that Article 2 does not solely concern deaths resulting from the
use of force by agents of the State’ but also, in the first sentence of its first paragraph, ‘lays
down a positive obligation on States to take appropriate steps to safeguard the lives of those
within their jurisdiction’ and that ‘this positive obligation entails above all a primary duty
on the State to put in place a legislative and administrative framework designed to provide
effective deterrence against threats to the right to life’.205
According to Kälin and Dale, ‘the Court’s case law allows us to conclude that failing to
take feasible measures that would have prevented or mitigated the consequences of foresee-
able disasters amounts to a violation of the right to life and therefore incurs the responsi-
bility of the state under international law’.206 Importantly, ‘the individual right to life
and corresponding state obligation to protect life require that with regard to natural disas-
ters, including those caused by climate change, the relevant authorities must enact and
implement laws dealing with all relevant aspects of disaster risk mitigation’.207
(ii) The Inter-American Court for Human Rights (IACHR)

Petition Seeking Relief from Violations Resulting from Global Warming Caused by Acts and
Omissions of the United States (2005)
In the 2005 petition before the Inter-American Commission on Human Rights, the Inuit
alleged that climate change was attributable to the acts and omissions by the United
States, in violation of their fundamental human rights, in particular the rights to the benefits
of culture, property, the preservation of health, life, physical integrity, security, and a means
of subsistence, and to residence, movement and the inviolability of the home.208 These
rights, it was argued, were protected under several international human rights instruments,
including the American Declaration of the Rights and Duties of Man.209 However, the
Commission declined to review the merits of the petition, stating that the ‘information pro-
vided does not enable us to determine whether the alleged facts would tend to characterize a
violation of rights protected by the American Declaration’.210
Although the Inuit Petition failed, it did draw attention to the connection between
climate change and human rights and led to a ‘Hearing of a General Nature’ on human
rights and global warming,211 and generated considerable debate in the academic litera-
ture.212 Similarly, Argentina drafted and tabled a resolution on human rights and climate
change, which was adopted by the General Assembly of the Organization of American
States in June 2008.213
The matter of the Kichwa de Sarayaku Indigenous People v. Ecuador214

On 26 April 2010, the Inter-American Commission on Human Rights submitted a case
against the State of Ecuador to the Inter-American Court of Human Rights, for gross viola-
tions of the fundamental human rights and freedoms of the Kichwa People of Sarayaku in
contravention of the American Convention on Human Rights.215 The Commission accepted
662 J. Williams
as an established fact that the Sarayaku community has been in possession of their ancestral
territory since time immemorial,216 and that in 1992, Ecuador legally recognised the
Sarayaku community’s ancestral territory by granting title.217 The Commission found
that on 26 July 1996 the state concluded a contract with the Argentine business, Compañı́a
General de Combustible, granting a concession for oil exploration and drilling over an area
of 200,000 hectares,218 with over 65 per cent of this area being within the ancestral territory
of the Kichwa indigenous community of Sarayaku.219 The Commission found that the con-
tract was signed without consulting the Sarayaku people and without having obtained their
informed consent.220
As a result, over the last two decades, there have been a series of gross human rights
violations. On 13 January 2003, villagers from Jatún Molino were shot at from the bank
of the Bobonaza River.221 On 25 January 2003, members of the Ecuadorian Army and
CGC security personnel detained and tortured indigenous leaders of the Sarayaku commu-
nity.222 On 29 January 2003, an Ecuadorian Army patrol prevented workers from the CGC
from raping two 12-year-old girls from the Sarayaku community.223 It was found by the
Commission that with the state’s protection and acquiescence, ‘the oil company cleared
trails and pumped 468 wells with a total of 1433 kilograms of explosives’ and ‘left the
explosives planted on the lands of the Sarayaku’, which ‘pose a grave and imminent
threat to their lives’ and ‘prevents the community from practicing communal agriculture,
hunting, fishing and gathering’.224
The Commission therefore requested the court to adjudge and declare that there had
been violations of Article 21, the Right to Property, Article 13, Freedom of Thought and
Expression, Article 23, the Right to Participate in Government, Article 1(1), the Obligation
to Respect Rights, Article 4, the Right to Life, Article 8, the Right to Due Process and
Article 25, the Right to Judicial Protection, Article 22, Freedom of Movement and Resi-
dence, Article 5, the Right to Humane Treatment and Article 2, the Obligation to Adopt
Domestic Measures.225
Further, the Commission requested the court to order that the State of Ecuador adopt
measures necessary to ensure and protect the right to property with respect to the ancestral
territory, guarantee the right to practice their traditional subsistence activities, ensure that
indigenous representatives have a meaningful and effective role in the decision-making
process, to take the measures necessary to prevent a recurrence of similar events in the
future and to order full individual and communal reparations for the Kichwa people of
Sarayaku, including compensation for the pecuniary and non-pecuniary damages and
costs.226 According to Krsticevic, ‘The case is extremely significant as it is emblematic
of the persistence of the violation of the rights of indigenous peoples not only in
Ecuador but throughout the Americas.’227 The Inter-American Court is expected to issue
its final decision by the end of 2011.228
(iii) The African Commission and Court on Human and Peoples’ Rights
The Ogoni People, Communication 155/96, Ref: ACHPR/Comm/A044/1, 27 May 2002
At its 30th Ordinary Session held from 13– 27 October 2001, the African Commission
found that the oil consortium between the military government of Nigeria through the
state oil company, the Nigerian National Petroleum Company (NNPC), and Shell
Petroleum Development Corporation (SPDC), had ‘exploited oil reserves in Ogoniland
with no regard for the health or environment of the local communities’, the Ogoni
People, and ‘had disposed toxic wastes into the environment and local waterways in viola-
tion of applicable international environmental standards’.229 The consortium had also
‘neglected and/or failed to maintain its facilities’ causing ‘numerous and avoidable spills in
the proximity of the villages’.230 The resulting contamination of ‘water, soil and air had
serious short and long-term health impacts, including skin infections, gastrointestinal and
respiratory ailments, and increased risk of cancers, and neurological and reproductive pro-
blems’.231 The Commission also found that ‘the Nigerian security forces destroyed and
threatened Ogoni food sources’,232 and ‘attacked, burned and destroyed several Ogoni vil-
lages and homes under the pretext of dislodging leaders and supporters’,233 which ‘left
thousands of villagers homeless’.234
The African Commission found the Federal Republic of Nigeria in violation of Article
2, the Enjoyment of Rights without Discrimination, Article 4, the Right to Life and Integrity
of the Person, Article 14, the Right to Property, Article 16, Mental and Physical Health,
Article 18(1), the Right to Family, Article 21, the Right to Freely Dispose of their
Wealth and Natural Resources, and Article 24, the Right to a General Satisfactory Environ-
ment under the African Charter on Human and Peoples’ Rights.235

The African Commission held that ‘Article 24 requires the State to take reasonable and
other measures to prevent pollution and ecological degradation, to promote conservation,
and to secure an ecologically sustainable development and use of natural resources.’236
According to Coomans, ‘This communication is important and special, because, for the
first time, the Commission was able to deal in a substantive and groundbreaking way
with alleged violations of economic, social and cultural rights which formed the substance
of the complaint’.237 In addition, ‘the Commission took a firm and dynamic approach that
may contribute to a better and more effective protection of economic, social and cultural
rights in Africa’.238
Part 4: The international avenues

(i) International human rights law
(a) The Universal Declaration of Human Rights, 1948
Although the Declaration is not a legally binding treaty, it is the foundation document of the
International Bill of Rights and with many of its provisions recognised as customary inter-
national law, it is regarded as an authoritative interpretation of Articles 55 and 56 of the
United Nations Charter, binding on all UN member states.239 Given this, a number of
important articles under the Universal Declaration of Human Rights 1948 are seriously vio-
lated by the impact of climate change on indigenous people, including Article 2, the Right
to Equality; Article 3, the Right to Life, Liberty and Security of Person; Article 17(2), the
Right Not to be Arbitrarily Deprived of Property; Article 18, the Right to Freedom of
Thought, Conscience and Religion; Article 22, the Right to Social Security and the Econ-
omic, Social and Cultural Rights Indispensable for Dignity and the Free Development of
Personality; Article 25, the Right to a Standard of Living, the Health and Well-Being
and the Right to Security in the Event of Circumstances beyond his Control; Article 27,
the Right to Freely Participate in the Cultural Life of the Community and Article 29, the
Right to Community. The Declaration is therefore, an important instrument through
which the special rights of indigenous peoples can be voiced.240
(b) The International Covenant on Civil and Political Rights 1966, (ICCPR)241
Ominayak, Chief of the Lubicon Lake Band v. Canada, The United Nations Human Rights
Committee, Communication No. 167/1984, UN Doc. CCPR/C/38/D/167/1984 (10 May
1990). In Ominayak, Chief of the Lubicon Lake Band v. Canada,242 Chief Ominayak and
the Lubicon Lake Band, a Cree Indian band living within the Province of Alberta,
664 J. Williams
commenced an action against the Government of Canada for authorising the exploration of
oil and gas on their traditional lands.243 It was alleged that the Canadian government,
through the Indian Act 1970 and Treaty 8 1899 had recognised the right of the original
inhabitants to continue their traditional way of life.244 Despite these laws and agreements,
the Canadian government allowed the provincial government of Alberta to expropriate the
territory of the Lubicon Lake Band for gas and oil exploration by private corporate inter-
ests.245 Chief Ominayak and the band alleged that this ‘will destroy the environment’,
‘the traditional economy’ and ‘its spiritual and cultural connection to the land’ and in so
doing, the government of Canada had violated the Lubicon Lake Band’s right of self-deter-
mination under Article 1 of the ICCPR.246
Whilst the Human Rights Commission (HRC) declared that the right to self-determi-
nation was not justiciable under the ICCPR Optional Protocol, it did hold that a violation
of Article 27, the Right to Culture had occurred.247 As the HRC held, ‘Historical inequi-
ties. . .and certain more recent developments threaten the way of life and culture of the
Lubicon Lake Band and constitute a violation of Article 27.’248
(c) The International Covenant on Economic, Social and Cultural Rights, (ICESCR)249
The ICESCR is the primary international legal instrument on economic, social and cultural
rights. Overseen by the Committee on Economic, Social and Cultural Rights (CESCR),
Article 2(1) provides that ‘each state party undertakes to take steps, by all appropriate
means, with a view to achieving progressively the full realisation of the rights recognized
in the Covenant’.250 As such, many rights under the ICESCR are seriously violated by the
impact of climate change on indigenous people. Article 1, the Right to Self-Determination
is a fundamental principle of international law, which establishes that ‘all peoples have the
right of self-determination’, by virtue of which ‘they freely determine their political status
and freely pursue their economic, social and cultural development’.251 The CESCR
observed that the right to food under Article 11 requires the adoption of ‘appropriate econ-
omic, environmental and social policies’,252 and that the ‘right to health extends to its
underlying determinants, including a healthy environment’.253 The CESCR observed
that the human right to adequate housing under Article 11 is of ‘central importance for
the enjoyment of all economic, social and cultural rights’.254 Importantly, ‘adequate
housing must be habitable. . .protecting inhabitant from the cold, damp, heat, rain, wind
or other threats to health, structural hazards and disease vectors’.255 The CESCR observed
that the right to culture by indigenous people under Article 15 ‘is indispensable to their
existence, well-being and full development, and includes the right to the lands, territories
and resources which they have traditionally owned, occupied or otherwise used or
acquired’.256
However, while the ICESCR provides an important articulation of economic, social and
cultural rights, complaints may only be brought against states parties who have recognised
the competence of the Committee to receive and consider communications under the
Optional Protocol, which has not yet received the required number of ratifications to
enter into force.257 According to Ssenyonjo, ‘This means that in practice ESC rights are
still marginalised and still considered, inaccurately, as programmatic, aspirational, and
not justiciable. This has left billions of individuals unable to enjoy ESC rights.’258
(d) The United Nations Declaration on the Rights of Indigenous Peoples 2007 (DRIP)
By far, one of the most important advances in the protection of indigenous rights was the
passing of the United Nations Declaration on the Rights of Indigenous Peoples,259 whereby
many articles are recognised as established or emerging principles of customary law.260
Articles 1 – 6 recognise the Right to Nationality, Self-Determination, and Freedom from

Adverse Discrimination. This cluster includes Article 3, the Right to Self-Determination,
which is the cornerstone of the Declaration. Articles 6 – 10 recognise Right to Life, Integrity
and Security. Articles 11 – 13 recognise the Right to Culture, Spirituality and Linguistic
Identity. This section also recognises the right to maintain and protect religious and cultural
sites.
The most relevant sections of the Declaration to climate change are Articles 24– 30, in
particular, Article 26, which holds that indigenous peoples have the right to own, develop,
control and use the lands and territories which they have traditionally owned or otherwise
occupied or used. This includes the right to the full recognition of their laws, traditions and
customs, land-tenure systems and institutions and the right to effective measures by state
parties to prevent any interference with, alienation of, or encroachment upon these
rights.261
While the DRIP has received widespread recognition and acceptance by 143 state
parties, the advancement of the rights of indigenous people is substantially impaired
by the very nature of the Declaration, which is non-binding.262 Given this, Barelli
argues that:
. . . we now live in an era where Indigenous rights, rather than claims, have come to rep-
resent the core of the Indigenous debate, where Indigenous peoples’ and States’ representa-
tives sit on an equal footing at the UN Permanent Forum on Indigenous Issues (Forum),
where States are increasingly taken before regional and domestic courts for violating the
rights of indigenous communities, and where it is argued that some of the provisions embo-
died in the indigenous rights regime form part of current, or, at least, developing, customary
international law.263
(e) The Convention on the Elimination of All Forms of Racial Discrimination 1969,
(CERD)264
‘Request for consideration of the situation of Indigenous peoples in Kalimantan, Indonesia,
under the United Nations Committee on the Elimination of Racial Discrimination’s Urgent
Action and Early Warning Procedures’, submitted 6 July 2007.265 The request by the indi-
genous peoples of Kalimantan of Indonesia under the urgent action and early warning pro-
cedures of the Committee on the Elimination of Racial Discrimination was submitted by 12
Indonesian organisations and one international non-governmental organisation (NGO),266
in relation to Indonesia’s plans to establish oil palm plantations over some 850 kilometres
as part of the Kalimantan Border Oil Palm Mega-Project.267 The area covers the ancestral
territory of 1 – 1.4 million Dayak indigenous people,268 and it was alleged that the project
will cause ‘irreparable harm to Indigenous peoples’ territories, their traditional means of
subsistence, and their cultural, territorial and physical integrity’, thereby threatening their
‘very survival’.269
More than a year and a half later, with no response from the Indonesian government,
the same NGOs made another ‘Request for Consideration of the Situation of Indigenous
Peoples in Indonesia’.270 The chairperson of CERD wrote to Indonesia’s UN ambassador
strongly condemning how ‘Indonesia continues to lack any effective legal means to
recognise, secure and protect Indigenous peoples’ rights to their lands, territories and
resources.’271 In a further letter dated 28 September 2009, the Committee found that
‘the property rights of Indigenous peoples were not appropriately taken into account in
the formulation of the United Nations Collaborative Programme on Reducing Emissions
from Deforestation and Forest Degredation in Developing Countries (REDD) and finan-
cing for implementation is being sought from the World Bank’s Forest Carbon Partnership
666 J. Williams
Facility without having secured the meaningful participation or consent of Indigenous

peoples’.272 According to Johnstone, ‘despite the lack of enforceability of this convention
to compel states to comply with the obligations they assumed by ratifying the treaty’, ‘this
rich new world of concepts, rules and resources provided by the global legal order opens
up new space for the use of law as resistance, and is clearly being utilised by local
actors’.273
(ii) International environmental law

(a) The United Nations Framework Convention on Climate Change (UNFCCC)274
Negotiated between 1990 and 1992, the UNFCCC entered into force in 1994 and with 193
parties, the Convention enjoys near-universal membership.275 Under Article 2, the ultimate
objective of the Convention is the ‘stabilization of greenhouse gas concentrations in the
atmosphere at a level that would prevent dangerous anthropogenic interference with the
climate system’. Article 3(1) enshrines the principle of intergenerational equity, whereby
‘Parties should protect the climate system for the benefit of present and future generations
of humankind, on the basis of equity’. Importantly, the Convention establishes the principle
of ‘common but differentiated responsibilities’ whereby ‘developed country Parties should
take the lead in combating climate change and the adverse effects’ and the ‘specific needs
and special circumstances of developing country Parties’, ‘should be given full consider-
ation’. Article 3(3) enshrines the precautionary principle, whereby ‘Parties should take pre-
cautionary measures to anticipate, prevent or minimize the causes of climate change and
mitigate its adverse effects’. Where there are threats of serious or irreversible damage,
‘the lack of full scientific certainty should not be used as a reason for postponing such
measures’. Similarly, the principle of sustainable development is enshrined under article
3(4). Article 14 provides the mechanism for the settlement of disputes, whereby parties
may submit ‘the dispute to the International Court of Justice’ or ‘arbitration in accordance
with the procedure adopted by the Conference of the parties’. While the UNFCCC is a legal
framework for addressing global warming, rather than a prescriptive legal instrument, as
Godden observed, ‘Public international environmental law, in particular the United
Nations Framework Convention on Climate Change, is a point of potential redemption
for the deaths and loss that are predicted to occur with global warming.’276
(b) The Kyoto Protocol277

The UNFCCC is complemented by the 1997 Kyoto Protocol,278 which has 192 parties.
Under the treaty, 37 industrialised countries and the European Community have com-
mitted to reducing their emissions by an average of five per cent by 2012 against 1990
levels. Kohler contends that ‘the Committee is one of the most powerful and independent
committees of its kind established by an environmental convention’, which ‘operates
within the framework of a plenary, a bureau and two branches, the facilitative branch
and the enforcement branch’.279 The enforcement procedure can be triggered by the sec-
retariat on the basis of noncompliance reports provided by teams of experts, by ‘any party
with respect to itself’ or by ‘any Party with respect to another Party, supported by corro-
borating information’. The enforcement branch can make a declaration of non-compli-
ance, which constitutes an initial sanction, it can request the party concerned to present
a plan correcting the situation and the branch can also suspend eligibility for flexibility
mechanisms with the amounts assigned for the following period reduced by 1.3 times
the excess amount. The sanctions can therefore be considerable and the Committee has
already dealt with five cases, one in the facilitative branch and four in the enforcement
branch.280 According to Maljean-Dubois, ‘the Protocol has one of the most comprehen-
sive and rigorous systems of compliance for a multilateral environmental agreement’.
However, ‘though very elaborate, the system is not totally fail-safe. A State experiencing
great difficulty could choose to override it.’281
Remaining one of the most fundamental challenges to the implementation of inter-
national environmental law in general and the Kyoto Protocol in particular is the monitoring
of compliance by signatory parties and enforcement in the case of non-compliance. In light
of this, on 31 December 2012, the Kyoto Protocol’s first commitment period will expire.
Unless states agree to a second commitment period, requiring a further round of emissions
cuts, the Protocol will no longer impose any quantitative limits on states’ greenhouse gas
emissions. According to Bodansky and O’Connor, ‘although, as a legal matter, the Protocol
will continue in force, it will be a largely empty shell, doing little if anything to curb global
warming’.282 ‘The future of the Protocol thus seems doubtful at best.’283
(c) The Convention Concerning the Protection of the World Cultural and Natural
Heritage284
The General Assembly of UNESCO adopted the World Heritage Convention at its 17th
session on 16 November 1972 and it entered into force in December of 1975.285 It is
one of the most widely adopted multilateral agreements, with 186 parties.286 The foun-
dation provision of the Convention is Article 4, which provides that each state party ‘recog-
nizes the duty of ensuring the identification, protection, conservation, presentation and
transmission to future generations of the cultural and natural heritage’. In addition,
Article 5 places a number of obligations on states parties ‘to ensure that effective and
active measures are taken for the protection, conservation and presentation of the cultural
and natural heritage situated on its territory’. Article 6 provides that the states parties ‘recog-
nize that [such heritage] constitutes a world heritage for whose protection it is the duty of
the international community as a whole to co-operate’. Under Article 6 (3), states parties
undertake ‘not to take any deliberate measures which might damage directly or indirectly
the cultural and natural heritage’. Under Article 11(4), if a site is threatened by a serious
and specific danger, both ascertained and/or potential danger, it may be listed in the List
of World Heritage in Danger.287
In terms of climate change, there have been five petitions filed with the World Heritage
Committee, requesting several sites be added to the Convention’s List of World Heritage in
Danger, including Sagarmatha National Park (Nepal), Huascaran National Park (Peru), the
Great Barrier Reef (Australia), the Belize Barrier Reef Reserve System (Belize) and the
Waterton-Glacier International Peace Park, (US/Canada).288 While recognising that ‘the
impacts of Climate Change are affecting many and are likely to affect many more World
Heritage properties’, the Committee decided not to inscribe the sites on the ‘In Danger
list’.289 According to Burns, ‘the World’s Heritage Convention’s failure to take the oppor-
tunity to address the potential effects of climate change in a meaningful fashion is lamen-
table’, ‘. . .the World Heritage Committee opted for an extremely tepid alternative to
inscribing the sites, a climate change “strategy”, with no binding components’.290
Given this, the only case to examine the nature of the obligations imposed by Articles 4
and 5 is Commonwealth v. Tasmania,291 in the High Court of Australia. Despite the quali-
fying language of Articles 4 and 5, the majority determined that both Articles impose
legally binding obligations.292 As the submission by the Australian Climate Justice
Program observed, ‘The obligations under the World Heritage Convention. . .are not divis-
ible. States must reduce greenhouse gas emissions to protect World Heritage and guarantee
the transmission of World Heritage to future generations.’293
668 J. Williams
(iii) Public international law

(a) State responsibility for internationally wrongful act – the ILC articles
The traditional means of invoking responsibility for wrongs at international law has been by
an individual state against another state for breaches of an obligation owed under customary
international law or treaty law.294 The Articles on state responsibility,295 were adopted in
2001 by the International Law Commission (ILC), and have been applied by international
courts and tribunals as reflecting international customary law.296 Article 1 lies at the core of
the law of state responsibility and confirms that a state is legally responsible when it
breaches international law.297 In the Israeli Wall case, the ICJ confirmed that the law of
state responsibility is broader than a bilateral relationship and includes the international
community of states as a whole.298 Article 2 sets out the elements of an internationally
wrongful act, the act must be attributable to the state and the conduct must be a breach
of an international obligation of the state. Article 4 provides that the conduct of any state
organ, whether legislative, executive or judicial is an act of the state if the organ was
acting in that capacity. The acts of private individuals are not normally attributable to the
state, unless the state has failed to take all reasonable steps to prevent the wrongful
conduct. Article 12 provides that an international wrongful act requires in addition to
satisfaction of the element of attribution, a breach of an international obligation of the
state. Articles 28– 37 provide the legal consequences of an internationally wrongful act
and include, duty of performance, cessation and non-repetition, reparation, restitution,
compensation and satisfaction.
(b) Climate change as an erga omnes obligation under customary international law
Importantly, Article 40 provides that a breach of an obligation arising under a peremptory
norm of international law occurs if it involves a gross or systemic failure. Accepted norms,
which may be invoked in the climate change context are genocide, crimes against humanity,
racial discrimination and the right to self determination.299 Moreover, it has been argued
that the duty to prevent or if not, mitigate the devastating effects of climate change has
emerged as an erga omnes obligation,300 a legal obligation owed to the international
community as a whole.301 Commentators have argued that because the global climate is
ecologically interdependent, states have a collective interest in its preservation and a
legal obligation to do so.302 In the ICJ, Justice Weemarantry found, ‘[t]here is substantial
evidence to suggest that the general protection of the environment beyond national jurisdic-
tion has been received as obligations erga omnes’.303
(c) Trans-boundary harm

States also have an obligation to ensure that activities within their territory do not cause
trans-boundary harm beyond their jurisdictional limits. The Trail Smelter case was one
of the earliest attempts to apply the general principles of international law to trans-national
environmental harm, which dealt with damage to the United States as a result of sulphur
dioxide emissions from a Canadian smelter. The tribunal found that ‘no state has the
right to use or permit the use of its territory in such a manner as to cause injury by
fumes in or to the territory of another or the properties or persons therein. . .’.304 The ICJ
in the Nuclear Weapons advisory opinion held that ‘the existence of the general obligation
of States to ensure that activities within their jurisdiction and control respect the environ-
ment of other States or of areas beyond national control is now part of the corpus of inter-
national law relating to the environment’.305
Practically, pursuing a claim through public international law is highly problematic.
First, under Article 36, the ICJ relies on the voluntary assent of state parties to the
jurisdiction of the court.306 As a result, the court has heard less than 100 cases in over 60
years.307 In more than 20 contentious cases, the ICJ’s jurisdiction was challenged, with the
ICJ dismissing almost half of these cases.308 Second, under Article 94, the power of enfor-
cement of the ICJ’s judgements is the responsibility of the Security Council.309 If the jud-
gement is against one of the permanent five members of the Security Council, the resolution
of enforcement can be vetoed.310
(d) The matter of Tuvalu and the United States and the Commonwealth of Australia
In 2002, the Pacific Island-State of Tuvalu experienced such problems when it threatened to
commence action against the US and Australia for refusing to ratify the Kyoto Protocol in
the ICJ.311 Considered one of the most vulnerable places in the world to climate change
with forecasts that the coral atoll consisting of nine islands will disappear by 2050, 312
the Tuvaluan government has formulated a plan to move the entire population of approxi-
mately 11,000 over a 30 year period.313 As a result, the Tuvaluan prime minister has
requested environmental refugee status for its citizens from both Australia and New
Zealand and whereas New Zealand has responded by allowing 75 Tuvaluans to relocate
annually, Australia has refused to make any such offer.314
While Tuvalu has yet to bring a case before the ICJ, the island state maintains a right to
compensation for damages caused by climate change.315 According to Jacobs, ‘outside of
various jurisdictional issues that may pre-empt the suit’, Tuvalu’s action will likely have ‘a
number of substantive law problems’, including demonstrating that ‘the United States and
Australia are unlawfully causing the island damage’, and that Tuvalu ‘has a right to future
damages that have yet to occur’.316 Jacobs suggests that Tuvalu may have a better cause of
action under the principle of intergenerational equity, the precautionary principle and the
polluter pays principle.317 As Jacobs observed, ‘Tuvalu’s case presents a unique opportu-
nity to address international environmental law issues that will likely arise in future
cases brought by victims of global warming.’318
(iv) International criminal law

(a) Genocide
Given that the climate science is now undeniable; given that governments and industry have
full knowledge of the devastating effect of carbon pollution as a direct result of their activities
and given the dependence of indigenous people on their traditional homelands for the survival
of their physical, spiritual and cultural existence, important questions have recently emerged
in the academic commentary regarding whether the wanton destruction of the traditional
homelands and the pending extinction of indigenous people constitutes an act of genocide?
The Aliens Torts Claims Act – Beanal v. Freeport-McMoRan Inc.319 The Alien Tort Statute
(ATS),320 was enacted in 1789 and has most recently been used ‘in connection with inter-
national human rights litigation’.321 Other courts have recognised that under the ATS a
private individual may assert a claim ‘against a private actor for violation of the law of
nations’.322 Also recognised by other courts is the idea that ‘an individual found to have
violated the law of nations may be held liable under §1350’.323 For Reed, ‘while such a
claim would cover new ground legally, the foundation in international human rights law
is sufficient to make the claim’.324
In Beanal v. Freeport-McMoRan Inc,325 the plaintiff, Tom Beanal, a resident of Tamika,
Irian Jaya, located within the Republic of Indonesia and a leader of the Amungme Tribal
Counsel of Lambaga Adat Suku Amungme (LEMASA), alleged in his complaint that
670 J. Williams
defendants Freeport-McMoran, Inc. (Freeport), an international mining corporation based

in New Orleans, committed environmental torts, human rights abuses and cultural geno-
cide.326 The lawsuit centred upon Freeport’s ownership and operation of the Grasburg
Mine, a copper, gold and silver strip mine occupying nearly 26,400 square kilometres in
the Jayawijaya Mountains of Irian Jaya.327 Beanal alleged that he and numerous other indi-
genous people were the victims of torture, detention, surveillance and other abuses, at the
hands of Freeport security forces, who acted in concert with Indonesian military auth-
orities.328 Beanal’s complaint claimed that the Louisiana Federal Court had jurisdiction
over the case through diversity jurisdiction,329 the Alien Tort Statute (ATS),330 and the
Torture Victim Protection Act 1991 (TVPA).331
The court addressed Freeport’s 12(b)(6) motion to dismiss for failure to state a claim
upon which relief can be granted and found that it could be treated as a motion for a
more definite statement, ‘even if the motion is not so styled’.332 In addressing the standing
issue, the court found that Beanal had ‘standing to assert claims on his own behalf’.333
While the court recognised genocide as an international tort, it found that Beanal, who
alleged a ‘cultural genocide’ had failed to show that Freeport was responsible for such a
crime.334 The court distinguished between the destruction of a ‘group’, which meets the
internationally accepted definition of genocide, and the destruction of a ‘culture’, which
was alleged by Beanal.335 Additionally, the court noted that genocide was a specific
intent crime requiring that Beanal show intent by Freeport to commit the acts
charged.336 Ultimately, the court found that Beanal had failed to ‘make the core allegation
that Freeport is committing genocide on a group of people’.337 With regard to the environ-
mental violations of the laws of nations under § 1350, the court dismissed these claims for
‘failure to state a cause of action for violation of international environmental law’.338
According to Jessup, ‘[t]he plaintiff’s case clearly raised many legitimate arguments for
the court to address. Perhaps the most striking aspect of this case was the fact that Beanal,
acting as his own attorney, was able to raise issues that adversely impacted a small population
on a remote island of the south Pacific, in the consciousness of an American court’.339
The Convention on Genocide340 and the Rome Statute.341 Conversely, the chances of a
successful prosecution under the strict tests of international criminal law are remote.
First, the mental requirement for genocide as provided for in Article II (i) of the Convention
on Genocide and Article 6 of the Rome Statute require the ‘intent to destroy, in whole or in
part, a national ethnic, racial or religious group’. This intent amounts to dolus specialis, or
an aggravated criminal intention.342 As Cordes-Holland observed, ‘it would be far-fetched
to assert that Australia’s emission policies have been or are intended to destroy, in whole or
in part, as required by the mens rea of this offence’.343
Second, in light of the travaux preparatoires of the Convention, the definition of gen-
ocide under the Convention on Genocide and the Rome Statute does not include cultural
genocide, that is to say, the destruction of the language, spirituality or culture of a
group.344 However, in his dissenting opinion in Krstic,345 Judge Shahabudden set out a
theory by which acts of cultural genocide may be subsumed within the definition of geno-
cide, arguing that:
. . . a group is constituted by characteristics – often intangible – binding together a collection of

people as a social unit. If those characteristics have been destroyed in pursuance of the intent
with which a listed act of a physical or biological nature was done, it is not convincing to say
that the destruction, though effectively obliterating the group, is not genocide because the oblit-
eration was not physical or biological.346
However, in Bosnia v. Serbia,347 the ICJ held that ‘despite recent developments, genocide
was limited to physical or biological destruction of a group’.348
Third, dolus eventualis based on recklessness or gross negligence are excluded under the
Convention on Genocide and the Rome Statute. The requirement of intent excludes ‘negli-
gent’ genocide, a crime without genuine intent but resulting from extreme carelessness.349
As the International Criminal Tribunal for Rwanda observed in the Akayesu case, an individ-
ual cannot be guilty as a participant in genocide, ‘where he did not act knowingly, and even
where he should have had such knowledge’.350 As such, recognition of a crime of ‘negligent
genocide’ or ‘genocide in the second degree’ has been proposed,351 particularly in the case of
economic development policies that displace indigenous peoples.352
While critics of the Convention continue to lament the absence of cultural genocide,353
the crime of ‘ethnocide’ has appeared in the academic literature,354 documents of inter-
national human rights organs,355 and international instruments.356 Similarly, the term
‘ecocide’ has emerged to describe cases of environmental destruction falling short of

genocide because the evidence can only establish negligence and not the special intent
of genocide.357 For Tennant and Turpel, it is therefore clear that both the Convention
and the Rome Statute are in urgent need of reform to recognise ‘cultural genocide’, ‘ethno-
cide’ and ‘ecocide’ based on recklessness or gross negligence as a serious and legitimate
international criminal crime.358
(b) Crimes against humanity

According to Article 7 of the Rome Statute, ‘crime against humanity’ is defined as a ‘wide-
spread or systematic attack against a civilian population, with knowledge of the attack’. The
statute lists several classes of the offence. The most relevant class in the climate change
context falls under Article 7(1)(h), persecution against any identifiable group on political,
racial, national ethnic, cultural, religious, gender or other grounds that are universally
recognised as impermissible under international law. The International Criminal Tribunal
for the former Yugoslavia (ICTY) Trial Chamber found that the comprehensive destruction
of Bosnian Muslim homes and property constituted ‘a gross or blatant denial of fundamen-
tal human rights and being committed on discriminatory grounds, amounted to persecu-
tion’.359 Similarly, Article 7(1)(k) provides for other inhumane acts which intentionally
cause great suffering or serious injury to body or mental or physical health. According to
Cassese, the rule is important for ‘it may function as a “residual clause” covering and crim-
inalizing instances of inhuman behaviour that do not neatly fall under any of the other exist-
ing categories of crimes against humanity’.360
Given this, the relevant principles of international law require two mental elements:
(i) the criminal intent or recklessness; and (ii) awareness of the existences of a widespread
or systematic practice. With regard to persecution, an additional mental element is required,
a persecutory or discriminatory animus. ‘The intent must be to subject a person or group to
discrimination, ill-treatment, or harassment, so as to bring about great suffering or injury to
that person or group. . .amounting to a special criminal intent.’361 Clearly, the wanton
destruction of the traditional homelands and the pending extinction of their people consti-
tutes one of the most serious crimes in human history. While such a prosecution is unlikely
and would indeed break new legal ground, the principles of international criminal law
would appear to support such an action.
(c) Climate change as a causal agent in conflict and insecurity

Besides being a potential cause of action under international law, alarming predictions have
been forecast regarding the impact of climate change as a causal agent of war and violent
672 J. Williams
conflict.362 Mabey has suggested that the uncontrolled effects of climate change could
generate conflicts on the scale of the world wars but lasting for centuries.363 Smith and
Vivekananda found that 46 countries with 2.7 billion people are at high risk of violent con-
flict due to climate change interacting with existing underlying causes of conflict, while a
further 56 countries with 1.2 billion people are at high risk of political instability possibly
leading to violent conflict in the longer term.364 As Saul observed, ‘[w]hile the spectre of
“climate wars” is fanciful, it is no exaggeration to suggest that the effects of climate change
are likely to stimulate domestic and global tensions and to aggravate other underlying
causes of conflict’.365
Part 5: Alternative legal approaches – the failure of the Western legal system to
protect and uphold the rights of indigenous people
It is therefore clear from the preceding analysis that there are serious and far reaching limit-
ations of the Western juridical tradition to uphold and protect the fundamental rights and
freedoms of indigenous people. Besides the enormous financial costs and the unconscion-
able time delays associated with bringing an action, the legal and academic commentary has
tended to explain this in strict legal terms, questions of standing, jurisdiction and points of
law. As Preston observed, ‘ultimately, litigation is unlikely to have a great overall effect on
climate change’.366 Other scholars have argued strongly for a human rights approach. Have-
mann, for example, has argued that ‘the absence of a human rights-based approach to
climate change governance, which would recognise Indigenous rights to participation
and other human rights, constitutes a major flaw in the processes, policies and measures
of the entire climate change regime’.367 Conversely, conservative commentary continues
to dispute the very reality of climate change and repudiates the normative integrity of the
human rights approach, let alone any procedural or substantive protection of indigenous
rights. Posner, for example, has argued that it is not ‘economically sound’ or ‘politically
acceptable’ for a human rights approach.368
While the emerging academic commentary has been important in terms of highlighting
the strict legal deficiencies of Western legal systems and the relative merits of the human
rights approach debate, it does not address the more profound historical, philosophical
and institutional limitations of the Western juridical tradition to protect and uphold indigen-
ous rights.369
First, the Western legal system has historically been used as a hegemonic and discri-
minatory weapon to legitimise the formal processes of colonisation over indigenous
people and their land. As such, the full institutional force of the Western legal system
has been used to legitimise the conquest, invasion and dispossession of indigenous
people and their land370; it was used to legitimise the mass murder, extermination and
massacre of indigenous people371; it was used to legitimise the destruction of language,
culture and tradition of indigenous people and it was used to legitimise the forced removal
of indigenous children from their families.372 So it is of little surprise that the full insti-
tutional force of the Western legal system is once again being used to protect the commer-
cial and industrial interests of the state and private enterprise – the primary causes of
carbon pollution and climate change – over the destruction of the traditional homelands
of indigenous people and the extinction of their people. Historically, the Western juridical
tradition has failed to protect the rights of indigenous people and there is little hope that
this will change.
Second, the ontological, epistemological and philosophical assumptions of the Western
juridical tradition, including its commitment to the primacy of the individual, private
property, commercial and industrial interests and profiteering from the exploitation of the
natural environment, over and above tribal structures of family life, ceremonial law, com-
munal title, subsistence living and dependence on the natural environment for the spiritual,
cultural and physical survival of their people; render it incapable of understanding the
unique modes of social organisation of indigenous people and institutionally incapable
of protecting and upholding the unique rights of indigenous people. Philosophically, the
Western juridical tradition is incapable of protecting the rights of indigenous people.373
Third, the institutional forces, systemic structures and organisational drivers of the
Western legal system are designed to protect and uphold the commercial and industrial
interests of the state and private enterprise which rely on the exploitation of the environment
for economic, political and military power. Conversely, indigenous legal systems, which
connect and depend on the natural environment for their spiritual, cultural and physical sur-
vival have been overpowered, dismantled, delegitimised and alienated by the hegemonic
power of the Western legal system. Institutionally, the Western legal system is incapable
of protecting the rights of indigenous people.374
It is for these highly disturbing reasons that the Western juridical tradition is incapable
of protecting and upholding the unique rights of indigenous people. Historically, philoso-
phically and institutionally, Western legal systems have failed to protect the rights of indi-
genous people. At an international level, indigenous people, communities and nations often
lack standing and many human rights and environmental instruments do not have a formal
enforcement mechanism and are therefore unable to uphold and protect the rights of indi-
genous people.
An International Court for Human Rights and an International Court for the
Environment
It is therefore the strong recommendation of this paper that given the historical crimes com-
mitted against indigenous people; given the destruction of their traditional homelands;
given the impending extinction of their people and given the failure of domestic and inter-
national legal systems to protect the rights of indigenous people, that an International Court
for Human Rights be established to uphold and protect the rights of indigenous people, inter
alia. Similarly, it is the strong recommendation of this paper that an International Court for
the Environment be established to uphold and enforce the Rio Declaration375 and to protect
the environment from the catastrophic affects of climate change. While outside the purview
of this paper, both courts should enjoy a universal and compulsory jurisdiction with an open
standing. In particular, they should grant indigenous people, communities and nations
special standing to commence cost effective and timely actions to prevent the destruction
of their traditional homelands and the extinction of their people.376
Concluding remarks
omic and legal issues of our time.377 The scientific evidence is overwhelming and undeni-
able: climate change will have a catastrophic and devastating impact on indigenous
people.378 Sadly, many of humanity’s oldest people face the loss of their traditional home-
lands and the extinction of their people as early as 2050, representing one of the greatest
losses and tragedies to the human family.379
While it may be impossible to establish under the strict tests of international criminal
law as presently constructed; it is the conclusion of this paper that the wanton destruction
674 J. Williams
of the traditional homelands of indigenous people and the extinction of their people by
carbon pollution and climate change does indeed constitute cultural genocide and
amounts to one of the most serious crimes in our human history.
As such, the emerging legal and academic commentary is extremely pessimistic regard-
ing the prospects of success for indigenous people launching climate change litigation.380
The commentary has tended to explain this in strict legal terms, points of law, standing and
jurisdictional issues. While it has been important in terms of highlighting the strict legal
deficiencies of Western legal systems and the relative merits of the human rights approach
debate, it does not address the more profound historical, philosophical and institutional
limitations of the Western juridical tradition to protect and uphold indigenous rights.
Given the clear failure of domestic and international legal systems to protect and uphold
the unique rights of indigenous people, it is therefore the strong recommendation of this
paper that an International Court for Human Rights and an International Court for the
Environment be established to prevent the extinction of their people and the destruction
of their traditional homelands.381As Havemann observed:
Despite the unique impact of climate change on Indigenous peoples, they are among the groups
least likely to have their substantive and procedural rights recognised. As a consequence, Indi-
genous peoples’ rights are abrogated both by climate change itself and by the current measures
to mitigate and adapt to it. The present plight of Indigenous peoples, without a human rights-
based approach to climate governance, will be the future for all of humankind. Indigenous
people are the miner’s canary, the mercury in the global warming barometer.382
Notes
1. See generally Jan Salick and Anja Byg, eds, Indigenous Peoples and Climate Change (2007),
http://www.tyndall.ac.uk/publications/Indigenouspeoples.pdf (accessed 25 May 2010);
Mirjam Macchi, with Gonzalo Oviedo, Sarah Gotheil, Katharine Cross, Agni Boedhihartono,
Caterina Wolfangel, Matthew Howell, Indigenous and Traditional Peoples and Climate
Change: Issues Paper (2008), http://cmsdata.iucn.org/downloads/indigenous_peoples_
climate_change.pdf (accessed 25 May 2010); James J. McCarthy, Osvaldo F. Canziani, Neil
A. Leary, David J. Dokken, Kasey S. White, eds, Climate Change 2001: Impacts, Adaptation
and Vulnerability: Contribution of Working Group II to the Third Assessment Report of the
Intergovernmental Panel on Climate Change (2001), http://www.ipcc.ch/ipccreports/tar/
wg2/index.php?idp=0 (accessed 25 May 2010).
2. See generally, the Executive Summary, ‘Report of the Indigenous Peoples’ Global Summit on
Climate Change’ (Indigenous Peoples’ Global Summit on Climate Change, Anchorage,
Alaska, 20–24 April 2009), 8– 11.
3. Paul Havemann, ‘Ignoring the Mercury in the Climate Change Barometer: Denying Indigen-
ous Peoples’ Rights’, Australian Indigenous Law Review 13, no. 1 (2009): 2–26; Karen
Bubna-Litic, ‘Climate Change Impacts on the Poor – A Case Study of Australia’s Indigenous
Population and the Impact of Australia’s Response on this Population’, IUCN Academy of
Environmental Law Series, (forthcoming 2011).
4. The Indigenous Peoples’ Global Summit on Climate Change, The Anchorage Declaration,
April 24, 2009, http://www.indigenoussummit.com/servlet/content/declaration.html (accessed
25 May 2010).
5. Ross Garnaut, ‘Introduction’, in The Garnaut Climate Change Review Final Report, Septem-
ber 30, 2008, http://www.garnautreview.org.au/pdf/Garnaut_intro_synopsis.pdf (accessed 14
September 2009), XVII.
6. See generally Salick and Byg, Indigenous Peoples and Climate Change.
7. M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden, and C.E. Hanson, eds, Impacts,
Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change (‘Impacts, Adaptation and Vulner-
ability’) (2007), 7–22, http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-spm.pdf
(accessed 25 May 2010).
8. Donna Green, Garnaut Climate Change Review: Climate Impacts on the Health of Remote
Northern Australian Indigenous Communities (2008), 4 –7, http://www.garnautreport.org.
au/CA25734E0016A131/WebObj/03-CIndigenous/$File/03-C%20Indigenous.pdf (accessed
16 July 2009).
9. Macchi et al., Indigenous and Traditional Peoples, and Climate Change: Issues Paper, 33.
Climate Change’, 8– 11.
11. While the first scientific warnings came from French polymath Jean-Baptiste Fourie in 1827,
the First World Climate Conference recognised climate change as a serious problem in 1979
and issued a declaration calling on the world’s governments ‘to foresee and prevent potential
man-made changes in climate that might be adverse to the well-being of humanity’. It also
endorsed plans to establish a World Climate Programme (WCP) under the joint responsibility
of the World Meteorological Organization (WMO), the United Nations Environment Pro-
gramme (UNEP), and the International Council of Scientific Unions (ICSU); source – The
Secretariat of the United Nations Framework Convention on Climate Change, Essential Back-
ground (2010), http://unfccc.int/essential_background/background_publications_htmlpdf/
climate_change_information_kit/items/300.php (accessed 25 May 2010).

12. See generally, Eric A. Posner, ‘Climate Change and International Human Rights Litigation: A
Critical Appraisal’, University of Pennsylvania Law Review 155 (2007): 1925; Laura Horne,
‘Is Litigation an Effective Weapon for Pacific Island Nations in the War Against Climate
Change’, Asia Pacific Journal of Environmental Law 12 (2009): 169–202; Owen Cordes-
Holland, ‘The Sinking of the Strait: The Implications of Climate Change for Torres Straight
Islanders’ Human Rights Protected by the ICCPR’, Melbourne Journal of International
Law 9, no. 2 (2008): 405.
13. Brian J. Preston, ‘Climate Change Litigation’, Environmental and Planning Law Journal 26
(2009): 169.
14. Garnaut, ‘Introduction’, XVII.
15. S. Solomon, D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor and H.L.
Miller (eds) Contribution of Working Group I to the Fourth Assessment Report of the Intergo-
vernmental Panel on Climate Change, 2007 (Cambridge:Cambridge University Press, 2007).
16. United Nations Framework Convention on Climate Change Secretariat, Climate Change:
Impacts, Vulnerabilities and Adaption in Developing Countries (2007), 6, http://unfccc.int/files/
essential_background/background_publications_htmlpdf/application/txt/pub_07_impacts.pdf
(accessed 14 September 2011).
17. Ibid.
19. The Office of the High Commissioner for Human Rights, Climate Change and Indigenous
People (The United Nations, Geneva, Switzerland 2008), http://www.ohchr.org/EN/
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23. African Partnership Forum, ‘Climate Change in Africa’ (Paper presented at the 8th Meeting of
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24. Ibid.
25. Boko et al., 2007: Africa. Climate Change 2007: Impacts, Adaptation and Vulnerability.
26. Ibid.
27. African Partnership Forum, ‘Climate Change in Africa’.
28. Ibid.
676 J. Williams
29. Ibid.
31. African Partnership Forum, ‘Climate Change in Africa’, 3.
33. Sydney Morning Herald, ‘Famine Due to Climate Change: African Bank’, Sydney Morning
Herald (Sydney), August 2, 2011.
34. R.V. Cruz, H. Harasawa, M. Lal, S. Wu, Y. Anokhin, B. Punsalmaa, Y. Honda, M. Jafari, C. Li
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35. Ibid.
36. Ibid.
37. Ibid.
38. Ibid.
39. Ibid.
40. Ibid.
41. Ibid.
42. Ibid.
43. Ibid.
44. Ibid.
45. Ibid.
46. Ibid.
47. K. Hennessy, B. Fitzharris, B.C. Bates, N. Harvey, S.M. Howden, L. Hughes, J. Salinger and
R. Warrick, 2007: Australia and New Zealand. Climate Change 2007: Impacts, Adaptation
and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the
Intergovernmental Panel on Climate Change, ed. M.L. Parry, O.F. Canziani, J.P. Palutikof,
P.J. van der Linden and C.E. Hanson (Cambridge: Cambridge University Press, 2007),
507 –40.
48. Ibid.
49. Ibid.
50. Ibid.
51. Ibid.
52. Ibid.
53. Ibid.
54. Ibid.
55. Green, Garnaut Climate Change Review.
56. Ibid.
57. Ibid.
58. Ibid.
59. Ibid.
60. Ibid.
61. Ibid.
62. Ibid.
63. Ibid.
64. Ibid.
65. Ibid.
66. Ibid.
67. Ibid.
68. Ibid.
69. G. Magrin, C. Gay Garcı́a, D. Cruz Choque, J.C. Giménez, A.R. Moreno, G.J. Nagy, C. Nobre
and A. Villamizar, 2007: Latin America. Climate Change 2007: Impacts, Adaptation and Vul-
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der Linden and C.E. Hanson (Cambridge: Cambridge University Press, 2007), 581–615.
70. Ibid.
71. Ibid.
72. Ibid.
73. Ibid.
74. Ibid.
75. Ibid.
76. Ibid.
77. Rachael Baird, The Impact of Climate Change on Minorities and Indigenous Peoples (London:
Minority Rights Group International, 2008), http://www2.ohchr.org/english/issues/
climatechange/docs/submissions/Minority_Rights_Group_International.pdf? (accessed 8
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78. C.B. Field, L.D. Mortsch, M. Brklacich, D.L. Forbes, P. Kovacs, J.A. Patz, S.W. Running and
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Linden and C.E. Hanson (Cambridge: Cambridge University Press, 2007), 617– 52.
79. Ibid.
80. Ibid.
81. Ibid.
82. Ibid.
83. Ibid.
84. Ibid.
85. Ibid.
86. Nancy C. Maynard, ed., Final Report Native People-Native Homelands Workshop on Climate
Change 28 October –1 November 1998 (Albuquerque, NM: US Global Change Research
Program, 1998), 54, http://www.usgcrp.gov/usgcrp/Library/nationalassessment/native.pdf.
87. The Office of the High Commissioner for Human Rights, Climate Change and Indigenous
People.
88. O.A. Anisimov, D.G. Vaughan, T.V. Callaghan, C. Furgal, H. Marchant, T.D. Prowse,
H. Vilhjálmsson and J.E. Walsh, 2007: Polar Regions (Arctic and Antarctic). Climate
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the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, ed. M.L.
Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden and C.E. Hanson (Cambridge: Cam-
bridge University Press, Cambridge, 2007), 653–85.
89. Ibid.
90. Ibid.
91. Ibid.
92. Ibid.
93. Ibid.
94. Ibid.
95. Baird, The Impact of Climate Change on Minorities and Indigenous Peoples.
96. Patricia Cochran, ‘Alaska Natives Left Out in the Cold’, Viewpoint, BBC News, January 4,
2007, http://news.bbc.co.uk/2/hi/science/nature/6230731.stm (accessed 18 August 2011).
97. Remarks by Sheila Watt-Cloutier, chair of the Inuit Circumpolar Conference to the United
Nations Environment Programme, ‘Champions of the Earth’ Award Ceremony, New York,
April 19, 2005, http://www.unep.org/pdf/champs-statements/Canada-statement.pdf (accessed
18 August 2011).
98. N. Mimura, L. Nurse, R.F. McLean, J. Agard, L. Briguglio, P. Lefale, R. Payet and G. Sem,
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99. Macchi et al., Indigenous and Traditional Peoples and Climate Change: Issues Paper, 29 –31.
100. Mimura et al., 2007: Small islands. Climate Change 2007: Impacts, Adaptation and
Vulnerability.
101. Ibid.
102. Ibid.
103. Ibid.
104. Ibid.
105. See note 11.
106. 549 US 1 (2007).
678 J. Williams
107. The decision was written by Justice Stevens and was signed by Justices Kennedy, Souter,
Bader Ginsburg and Breyer. Chief Justice Roberts and Justices Alito, Scalia and Thomas
dissented.
108. Massachusetts v. EPA 549 US 1 (2007) 25–30.
109. Andrew P. Morriss, ‘Litigating to Regulate: Massachusetts v. EPA’, Cato Supreme Court
Review (2007): 193; Jonathan H. Adler, ‘Warming Up to Climate Change Litigation’, Virginia
Law Review 3 (2007): 61, http://www.virginialawreview.org/inbrief/2007/05/21/adler.pdf
(accessed 23 August 2011).
110. To demonstrate standing, a litigant must show that they have suffered a concrete and particu-
larised injury that is either actual or imminent, that the injury is fairly traceable to the defen-
dant, and that a favourable decision will likely redress that injury, citing Lujan v. Defenders of
Wildlife, 504 US 555, 560 –1; Massachusetts v. EPA 549 US 1 (2007) Syllabus, 2.
111. Massachusetts v. EPA 549 US 1 (2007) 12–17.
112. Ibid., 17–19.
113. Ibid., 20–1.
114. Ibid., 30–2.
115. Jody Freeman and Adrian Vermeule, ‘Massachusetts v. EPA: From Politics to Expertise’,
Harvard Law School Program on Risk Regulation Research Paper No. 08-11, August 1,
2007, http://ssrn.com/abstract=1307811 (accessed 24 August 2011), 1.
116. David Markell and J.B. Ruhl, ‘An Empirical Survey of Climate Change Litigation in the
United States’, Environmental Law Report 40 (2010): 10644, 10650.
117. 406 F. Supp. 2d 265 (SDNY, 2005).
118. The states that initially filed suit were California, Connecticut, Iowa, New Jersey, New York,
Rhode Island, Vermont and Wisconsin. New Jersey and Wisconsin subsequently withdrew
from the suit. See AEP, 180 L. Ed. 2d at 443.
119. The three conservation groups were the Open Space Institute, Inc., Open Space Conservancy,
Inc., and the Audubon Society of New Hampshire. Ibid., 443.
120. The companies named in the suit were American Electric Power Company, Inc. (and American
Electric Power Service Corporation, a wholly owned subsidiary), Southern Company, Xcel
Energy, Inc., Cinergy Corporation and the Tennessee Valley Authority. AEP, 180 L. Ed. 2d
at 443 –4.
121. Although the two cases were combined, they were initially filed as two separate lawsuits, one
by the states and New York City, the other by the three conservation groups. See No. 04 Civ.
5669, 2004 WL 1685122 (SDNY filed 21 July 2004); No. 04 Civ. 5670, 2004 WL 5614409
(SDNY, filed 21 July 2004).
122. AEP, 180 L. Ed. 2d at 444.
123. Citing Missouri v. Illinois, 180 US 208 (1901) (Missouri I); Missouri v. Illinois, 200 US 496
(1906) (Missouri II); Georgia v. Tennessee Copper Co., 206 US 230 (1907); New York v. New
Jersey, 256 US 296 (1921); New Jersey v. New York, 283 US 473 (1931).
124. 180 L. Ed. 2d. at 444.
125. Connecticut v. American Electric 406 F. Supp. 2d 265 (SDNY, 2005), at 274.
126. Connecticut v. American Electric 406 F. Supp. 2d 265 (SDNY, 2005), at 272.
127. Connecticut v. American Electric 582 F.3d 309 (2009), at 315.
128. Ibid., 380.
129. American Electric Power Company, Inc., Et Al., Petitioners v. Connecticut Et Al. No. 10– 174,
564 US (2011), 6.
130. J. Ginsburg, delivered the opinion of the court, in which C.J. Roberts, and Scalia, Kennedy,
Breyer and J.J. Kagan, joined. J. Alito, filed an opinion concurring in part and concurring
in the judgement, in which J. Thomas, joined. J. Sotomayor, took no part in the consideration
or decision of the case.
131. American Electric Power Company, Inc., Et Al., Petitioners v. Connecticut Et Al. No. 10-174,
564 US (2011), 10.
132. Ibid., 15–16.
133. The test for displacement of federal common law claims requires a federal statute to ‘speak
directly’ to a given question. More is required to preempt state-law-based claims, preemption
will not be found unless the court concludes preemption ‘was the clear and manifest purpose of
Congress’, AEP, 131 S.Ct. at 2540.
134. American Electric Power Company, Inc., Et Al., Petitioners v. Connecticut Et Al. No. 10-174,
564 US (2011), 6.
135. Ibid., 11.
136. Ibid., 12.
137. Ibid., 13.
138. Ibid.
139. Jonathan H. Adler, ‘The Supreme Court Disposes of a Nuisance Suit: American Electric Power
v. Connecticut’, Cato Supreme Court Review (forthcoming); (Case Legal Studies Research
Paper No. 2011 –17, 3 August 2011), http://ssrn.com/abstract=1904541, (accessed 30
October 2011) at 22, 25.
140. No. 1:05-CV-436 (SD Miss., April 18, 2006).
141. D. Hunter and J. Salzman, ‘Negligence in the Air: The Duty of Care in Climate Change Liti-
gation’, University of Pennsylvania Law Review 155 (2007): 1754.
142. 585 F.3d at 861.
143. 585 F.3d at 859 –60.
144. 585 F.3d.
145. 585 F.3d 855 (5th Cir. 2009), vacated, rehearing granted en banc, Comer v. Murphy, 2010 US
App. LEXIS 4253 (5th Cir. 2010).
146. Ibid., 860.
147. For those claims, the plaintiffs were not alleging that the defendants’ greenhouse gas emissions
caused their injuries, but were alleging that the defendants’ public relations campaigns and
pricing of petrochemicals caused their injuries. Ibid., 861.
148. Ibid., 863–4.
149. Ibid., 864.
150. Ibid., 870.
151. Ibid., 875.
152. Ibid., 874.
153. 2010 US App. LEXIS 4253 (5th Cir. 2010). Stephen M. Johnson, ‘From Climate Change and
Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures?
Georgia State University Law Review (forthcoming), 14 May 2010, http://ssrn.com/
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154. 663 F.Supp. 2d 863 (ND Cal. 2009).
155. Defendants are: (1) ExxonMobil Corporation; (2) BP PLC; (3) BP America, Inc.; (4) BP Pro-
ducts North America, Inc.; (5) Chevron Corporation; (6) Chevron USA, Inc.; (7) ConocoPhi-
lips Company; (8) Royal Dutch Shell PLC; (9) Shell Oil Company; (10) Peabody Energy
Corporation; (11) The AES Corporation; (12) American Electric Power Corporation; (13)
American Electric Power Services Corporation; (14) DTE Energy Company; (15) Duke
Energy Corporation; (16) Dynergy Holdings, Inc.; (17) Edison International; (18) MidAmer-
ican Energy Holdings Company; (19) Mirant Corporation; (20) NRG Energy; (21) Pinnacle
West Capital Corporation; (22) Reliant Energy, Inc.; (23) The Southern Company; and (24)
Xcel Energy, Inc.
156. The US Army Corps of Engineers and the US Government Accountability Office have both
concluded that the estimated cost of relocation will range from $95 million to $400 million –
Complaint for Damages and Demand for Jury Trial, Native Village of Kivalina and City of
Kivalina v. ExxonMobil, et al., United States District Court, Northern District of California,
San Francisco Division, C 08-1138 (ND Cal., filed 26 February 2008), [1].
157. Ibid., 869.
158. Ibid.
159. Ibid., 870.
160. Ibid., 873.
161. Ibid., 873–7.
162. Ibid., 874–5.
163. Ibid., 882.
164. Ibid., 878.
165. Ibid., 880–1.
166. Ibid.
167. Ibid., 882.
680 J. Williams
168. Rachel D’Oro, ‘Kivalina, Alaska: Eroding Village Appeals Lawsuit’s Dismissal, Blames Cor-
porations for Climate Change’, The Huffington Post, 21 January 2010, http://www.
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169. The Environmental Law Institute, ‘Endangered Environmental Laws, Recent Cases’ (2011),
http://www.endangeredlaws.org/case_connecticut.htm (accessed 24 August 2011).
170. Ibid.
171. Ibid.
172. Article 21, The Constitution of India 2007; see generally Svitlana Kravchenko, ‘Right to
Carbon or Right to Life: Human Rights Approaches to Climate Change’, Vermont Journal
of Environmental Law 9 (2008): 514 –47.
173. MC Mehta v. Union of India AIR 1988 SC 1037; Vellore Citizens Welfare Forum v. Union of
India AIR 1996 SC 2715; (1996) 5 SCC 647; AP Pollution Control Board v. Prof MV Nayudu
(ret’d) [1999] 1 LRI 185; and MC Mehta v. Kamal Nath AIR 2000 SC 1997.
174. Article 9 of the Constitution of Pakistan 1973.
175. Shehla Zia v. WAPDA PLD 1994 SC 693; General Secretary, West Pakistan Salt Miners
Labour Union, Khewral, Jhelum v. Director of Industries & Mineral Development, Punjab
1994 SCMR 2061.
176. Section 71(1) of the Constitution of Kenya 2008 (2001).
177. Waweru v. Republic (2006) 1 KLR (E&L) 677.
178. Article II, section 16, the Constitution of the Philippines 1987.
179. Minors Oposa v. Factoran, Secretary of the Department of Environment & Natural Resources
33 ILM 173 (1994).
180. World Bank, ‘Global Gas Flaring Reduction – A Public Private Partnership’ (2010), http://web.
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184. Ibid.
185. Ibid.
186. Ratification and Enforcement Act, Cap. A9 Vol. 1, Laws of the Federation of Nigeria 2004.
187. Ibid., 30.
188. Amy Sinden, ‘An Emerging Human Right to Security from Climate Change: The Case Against
Gas Flaring in Nigeria’, in Adjudicating Climate Change: Sub-National, National and Supra-
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189. Ibid.
190. Council of Europe, T-PVS/Inf (2009) 4: ‘Human Rights and Climate Change’ (Document pre-
sented at the 4th Meeting of the Group of Experts on Biodiversity and Climate Change, 8 April
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191. Application no. 16798/90 [1994] ECHR 46 (9 December 1994).
192. Ibid., [30].
193. Ibid., [51].
194. Ibid., [60].
195. Ibid., [71].
196. Ibid., [11].
197. Ibid., [10].
198. Ibid., [33].
199. Ibid., [36].

200. Ibid., [80].
201. Okyay v. Turkey (Application no. 36220/97, ECtHR 1997-II) [74 –5].
202. Application nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgement of 20
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203. Ibid., [13– 38].
204. Ibid., [3].
205. Ibid., [128–9].
206. Walter Kälin and Claudine Haenni Dale, ‘Disaster Risk Mitigation – Why Human Rights
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tection Cluster Working Group (IASC).
207. Ibid., 39.
208. Organization of American States, Inter-American Commission on Human Rights, Petition
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215. Ibid., [1].
216. Ibid., [118]
217. Ibid., [59].
218. Ibid., [62].
219. Ibid., [63].
220. Ibid., [117].
221. Ibid., [82].
222. Ibid., [194].
223. Ibid., [93].
224. Ibid., [170].
225. Ibid., [5].
226. Ibid., [6].
227. Viviana Krsticevic, Executive Director of Centre for Justice and International Law (CEJIL),
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229. Ibid., [1].
230. Ibid., [1].
231. Ibid., [2].
682 J. Williams
232. Ibid., [9].

233. Ibid., [7].
234. Ibid., [8].
235. The African Commission on Human and Peoples’ Rights, Communication 155/96, Ref: ACHPR/
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236. Ibid., [52].
237. Fons Coomans, ‘The Ogoni Case Before the African Commission on Human Rights’, Inter-
national and Comparative Law Quarterly 52 (2003): 749.
238. Ibid., 749.
239. Universal Declaration of Human Rights, General Assembly Resolution 217 A (III), United
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242. HRC, Communication No. 167/1984, UN Doc. CCPR/C/38/D/167/1984 (10 May 1990).
243. Ibid., [2.2–2.3].
244. Ibid., [2.2–2.3].
245. Ibid., [2.2–2.3].
246. Ibid., [2.3] and [11.2].
247. Ibid., [33].
248. Human Rights Committee, ‘Promoting Economic and Social Development through Native
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266. Submitted on 6 July 2007 by Perkumpulan Sawit Watch Aliansi Masyarakat Adat Nusantara/
AMAN (Indigenous People Alliance of the Archipelago), Aliansi Masyarakat Adat Kaliman-
tan Barat (Indigenous People Alliance of West Kalimantan), Lembaga Studi dan Advokasi
Masyarakat/ELSAM (Center for Community Study and Advocacy), Wahana Lingkungan
Hidup Indonesia/WALHI (Friends of the Earth Indonesia), Perkumpulan Untuk Pembaharuan
Hukum Berbasis Masyarakat dan Ekologis/HuMA (Association for Community- and Ecolo-
gically-based Legal Reform), Yayasan Padi Indonesia Lembaga Bela Banua Talino Lembaga
Gemawan (Lembaga Pengembangan Masyarakat Swandiri/The Institution of Swandiri
Society Empowerment), Institut Dayakologi Forest Peoples Programme.
267. The Jakarta Post, ‘Government Plans World’s Largest Oil Palm Plantations’, 18 July 2005;
The Jakarta Post, ‘President’s Visit to China: China to Invest US$7.5 Billion’, 30 June,
2005; cited in Committee on the Elimination of Racial Discrimination, Seventy-First
Session, 30 July –18 August 2007, http://www2.ohchr.org/english/bodies/cerd/docs/ngos/
urgent_action.pdf (accessed 18 August 2011).
268. The total population in the border area is estimated at some 300,000 inhabitants, mostly from
Dayak origin, source: Society for Nature Conservation (SSNC), April 2006, 11, http://www.
orangutans-sos.org/downloads/palm_oil_mega_project.pdf (accessed September 16, 2011).
269. R. Stavenhagen, Special Rapporteur on the Situation of Human Rights and Fundamental Free-
doms of Indigenous People, Oral Statement to the UN Permanent Forum on Indigenous Issues
Sixth Session, 21 May 2007, 3, http://www.un.org/esa/socdev/unpfii/documents/6session_SR_
statement_asia_en.doc (accessed 16 September 2011), 3.
270. Request for Consideration of the Situation of Indigenous Peoples in the Republic of Indonesia
under the Follow Up and Early Warning and Urgent Action Procedures Seventy-fourth Session
(2009), cited in Naomi Johnstone, ‘Indonesia in the “Redd”: Climate Change, Indigenous
Peoples and Global Legal Pluralism’, Asian-Pacific Law and Policy Journal 12, no. 1
(2010): 110.
271. United Nations High Commissioner for Human Rights, Fatimata-Binta Victoroire Dah, Chair-
person of the Committee for the Elimination of Racial Discrimination, Correspondence to His
Excellency Mr I. Gusti Agung Wesaka Puja, Ambassador, Deputy Permanent Representative of
the Republic of Indonesia, 13 March 2009, Ref. TS/JF, http://www2.ohchr.org/english/bodies/
cerd/docs/early_warning/Indonesia130309.pdf (accessed 30 October 2011)
272. Ibid.
273. Johnstone, ‘Indonesia in the “Redd”: Climate Change, Indigenous Peoples and Global Legal
Pluralism’, 110, 113.
274. 1771 UNTS 107; S. Treaty Doc. No. 102-38; UN Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM
849 (1992).
275. Daniel Blobel and Nils Meyer-Ohlendorf, ed., United Nations Framework Convention on
Climate Change Handbook (Bonn, Germany: Intergovernmental and Legal Affairs, Climate
684 J. Williams
Change Secretariat, 2006), http://unfccc.int/resource/docs/publications/handbook.pdf

(accessed 16 September 2011), 44.
276. Lee Godden, ‘Death, Desire, Modernity and Redemption: Climate Change and Public Inter-
national Environmental Law’, Melbourne Journal of International Law 10 (2009): 543.
277. UN Doc. FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22 (1998).
278. Ibid.
279. J. Voı̈nov Kohler, ‘Le mécanisme de contrôle du respect du Protocole de Kyoto sur les chan-
gements climatiques: entre diplomatie et droit’ (PhD thesis in Law, University of Geneva,
2004), 139; cited in Sandrine Maljean-Dubois, ‘An Outlook for the Non-Compliance Mech-
anism of the Kyoto Protocol on Climate Change’, Amsterdam Law Forum 2, no. 2 (2011): 77.
280. In the case involving Greece, the enforcement branch considered that the Greek system for
recording greenhouse gas emissions was defective and notably suspended Greece’s eligibility
to take part in the flexibility mechanisms of the protocol for several months, thereby preventing
its participation. Ibid., 80.
281. Ibid., 79.
282. Daniel Bodansky and Sandra Day O’Connor, ‘Whither the Kyoto Protocol? Durban and
Beyond’, The Harvard Project on Climate Agreements (forthcoming 2011), SSRN: http://
ssrn.com/abstract=1917603 (accessed 18 August 2011), 1.
283. Ibid., 22.
284. Adopted by the General Conference at its 17th Session, Paris, 16 November 1972, citation:
1037 UNTS 151; 27 UST 37; 11 ILM 1358 (1972).
285. UNESCO, World Heritage, History of the Convention (Undated), http://whc.unesco.org/en/
169/ (accessed September 16, 2011).
286. UNESCO, World Heritage, States Parties: Ratification Status (Undated), http://whc.unesco.
org/en/statesparties/ (accessed 18 September 2011).
287. The Operational Guidelines, [179] and [180], set out the criteria for placing cultural and
natural properties on the ‘In-Danger’ list for both ascertained and potential dangers. [181] pro-
vides that the ‘factor or factors which are threatening the integrity of the property must be those
which are amenable to correction by human action’. Currently, only [179] (b) makes reference
to ‘climatic or other environmental factors’ as a potential danger, but only in respect of cultural
properties, United Nations Educational, Scientific and Cultural Organization, Convention
Concerning the Protection of the World Cultural and Natural Heritage’, World Heritage Com-
mittee, Thirty First Session, Christchurch, New Zealand 23 June– 2 July 2007, http://whc.
unesco.org/archive/2007/whc07-31com-71e.pdf (accessed 18 September 2011), 8.
288. For a full list of the petitioners, see Climate Justice Programme, Briefing for the UNESCO,
World Heritage Committee, Thirty-First
Session, in World Heritage and Climate Change: Complying with International Law (2007),
http://www.climatelaw.org/cases/country/intl/case-documents/unesco/unozblmtns/report
june.2007.pdf (accessed 18 September 2011), 5.
289. Since the Committee rejected the five climate-related In Danger petitions, two more have been
filed: (i) the Greater Blue Mountains World Heritage Area in Australia; and (ii) in January of
2009, Earthjustice and the Australian Climate Justice Programme, filed a petition with the
Committee that focused on the threat that black carbon emissions posed for an array of
World Heritage sites.
290. William C.G. Burns, ‘Belt and Suspenders? The World Heritage Convention’s Role in Con-
fronting Climate Change’, Review of European Community and International Environmental
Law 18 (2009): 158.
291. Commonwealth of Australia v. Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.
292. Ibid., [69].
293. Submission on Behalf of the Australian Climate Justice Program, The Climate Action Network
and Friends of the Earth Australia to the Adhoc Working Ground on Further Commitments from
Annex 1 Parties under the Kyoto Protocol, ‘State Parties Responsibilities under the World Heri-
tage Convention in the Context of Climate Change, – Absolute Minimum Temperature Rise
Necessary for Compliance with the World Heritage Convention’, September 2009, http://
whc.unesco.org/uploads/activities/documents/activity-393-3.pdf (accessed 18 August 2011), 5.
294. Article 26 of the Vienna Convention provides the doctrine of ‘pacta sunt servanda’ which
states that ‘[e]very treaty in force is binding upon the parties to it and must be performed
by them in good faith’.
295. International Law Commission, ‘Draft Articles on Responsibility of States for Internationally
Wrongful Act, 2001’, http://www.un.or/law/ilc/texts/State_responsibility/responsibility_
articles(e).pdf (accessed 30 October 2011); see also J. Crawford, The ILC’s Articles on State Respon-
sibility: Introduction, Text and Commentaries (Cambridge: Cambridge University Press, 2002).
296. Gabcikovo-Nagymaros Project (HungarylSlovakia), Judgement, 1. CJ Reports 1997, 7 at
[38] –[40].
297. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advi-
sory Opinion, ICJ Reports 2004, 136 at [147].
298. Ibid., [155].
299. International Law Commission, ‘Commentaries to the Draft Articles on the Responsibility of
States for Internationally Wrongful Acts’, in Report of the ILC on the Work of its Fifty-Third
Session, November 2001, UN Doc. A/56/10, http://www.un.org/law/ilc/texts/State_
responsibility/responsibility_commentaries(e).pdf, (accessed 30 October 2011), Article 26, [5].
300. R.S.J. Tol and R. Verheyen, ‘State Responsibility and Compensation for Climate Change
Damages – A Legal and Economic Analysis’, Energy Policy 32 (2004): 1109 at 1115; Philippe
Sands, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge Uni-
versity Press, 2003) at 188– 9; Jacqueline Peel, ‘New State Responsibility Rules and Compli-
ance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules
Might Apply in the International Environmental Context’, Review of European Community
and International Environmental Law 10 (2001): 82.
301. Responsibility of States for Internationally Wrongful Acts, Official Records of the General
Assembly, UN GAOR 56th Sess., Supp. No. 10 UN Doc. A/56/10 (2001) at art. 48(1)(b);
Barcelona Traction Company (Belgium v. Spain), [1970] ICJ Rep. 4 at 32.
302. Sands, Principles of International Environmental Law, 14; Ved P. Nanda and George Pring,
International Environmental Law and Policy for the 21st Century (Ardseley, New York:
Transnational Publishers, 2003), 36.
303. Case Concerning the Gabicikovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ
Rep. 7 [53].
304. Trail Smelter (United States v. Canada) Arbitration (1938– 41) 3 RIAA 1905, at 1965–6.
305. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 at
241 –2.
306. Only a total of 63 states have recognised the compulsory jurisdiction of the court (with or without
reservations) through the ‘optional clause’ system. See International Court of Justice, http://
www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasic_whobringcases.html (accessed 30
October 2011).
307. Edith B. Weiss, ‘Judicial Independence and Impartiality: A Preliminary Inquiry, in the Inter-
national Court of Justice at a Crossroads’, in The International Court of Justice at a Cross-
roads, ed. L. Damrosch (Dobbs Ferry, New York: Transnational Publishers, 1987), 135–9.
308. Ibid.
309. Barry E. Carter and Phillip R. Trimble, International Law (Boston, MA: Little Brown, Law
School Casebook Series, 1995), 301.
310. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua
v. USA), [1986] ICJ Reports 14, 158 –60 (Merits) per Judge Lachs.
311. Rebecca Elizabeth Jacobs, ‘Treading Deep Waters: Substantive Law Issues in Tuvalu’s Threat
to Sue the United States in the International Court of Justice’, Pacific Rim Law and Policy
Journal 14 (2003): 103.
312. The UN Intergovernmental Panel on Climate Change (IPCC) has forecast that by 2100 global
temperatures will rise by 1.4–5.88C and sea levels will rise by 9 –88 cm. Already some
30 per cent of Tuvalu’s territory becomes submerged during the rainy season; source, IPCC,
Climate Change 2001: The Scientific Basis. Contribution of Working Group I to the Third
Assessment Report of the Intergovernmental Panel on Climate Change [Houghton, J.T.,Y.
Ding, D.J. Griggs, M. Noguer, P.J. van der Linden, X. Dai, K. Maskell, and C.A. Johnson
(eds.)]. (Cambridge: Cambridge University Press), http://www.csun.edu/~hmc60533/
CSUN_630E_S2004/climate%20change/climate_change_2001_tech_summary.pdf (accessed
30 October 2011), 671.
313. David Ficking, ‘Islanders Consider Exodus as Sea Level Rises’, The Guardian, 19 July
2003, http://www.guardian.co.uk/environment/2003/jul/19/climatechange.climatechange
environment (accessed 18 August 2011).
686 J. Williams
314. The Cairns Post, ‘Tuvalu Pleads for Climate Assistance from Australia’, 9 April 2011, http://
cairnspost.newspaperdirect.com/epaper/viewer.aspx (accessed 18 August 2011).
315. Afelee Pita, Ambassador, Permanent Mission of Tuvalu to the United Nations, ‘Tuvalu Calls
for Climate Change Polluters to Pay’ (Press Release, 29 September 2007), http://www.
tuvaluislands.com/un/2007/un_2007-09-29.html (accessed 25 May 2010).
316. Rebecca Elizabeth Jacobs, ‘Treading Deep Waters: Substantive Law Issues in Tuvalu’s Threat
to Sue the United States in the International Court of Justice,’ Pacific Rim Law and Policy
Journal 14, no. 103 (2005).
317. Ibid.
318. Ibid.
319. 969 F. Supp. 362 (E.D.La. 1997).
320. The Alien Tort Statute provides: ‘The district courts shall have original jurisdiction of any civil
action by an alien for a tort only, committed in violation of the law of nations’, 370.
321. Ibid.
322. Ibid.
323. Ibid.
324. Rosemary Reed, ‘Rising Seas and Disappearing Islands: Can Island Inhabitants Seek Redress
under the Alien Tort Claims Act?’, Pacific Rim Law and Policy Journal 11 (2002): 399.
325. 969 F. Supp. 362 (E.D.La. 1997).
326. Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 365 (1997).
327. Ibid., at 365.
328. Ibid., at 368.
329. 28 USC § 1332 (1948).
330. 28 USC § 1350 (1948).
331. 28 USC § 1350, Sec. 1, et seq. (1992).
332. Ibid., 367.
333. Ibid.
334. Ibid., at 373.
335. Ibid.
336. Ibid.
337. Ibid.
338. Ibid., 384.
339. Ethan Jessup, ‘Beanal v. Freeport-McMoran, Inc.: Anatomy of an International Environ-
mental Tort Case’, New England International and Comparative Law Annual (1999), 1,
http://www.nesl.edu/userfiles/file/nejicl/VOL5/jessup.htm (accessed 18 August 2011).
340. The Convention on the Prevention and Punishment of the Crime of Genocide, General Assem-
bly Resolution 260 A (III) of December 9, 1948 (entry into force 12 January 1951).
341. The Rome Statute of the International Criminal Court (last amended January 2002), opened for
signature July 17, 1998, 2187 UNTS 3 (entered into force 1 July 2002).
342. William A. Schabas, Genocide in International Law, The Crime of Crimes, 2nd ed.
(Cambridge: Cambridge University Press, 2009), 257.
343. Nulyarimma v. Thompson [1999] FCA 1192; (1999) 96 FCR 153, 208, which demonstrates the
difficulty of establishing the dolus specialis of genocide.
344. Ibid., 213.
345. Prosector v. Krstic (Case No. IT-98-33-A), Partially Dissenting Opinion of Judge Shahabudd-
een, April 19, 2004.
346. Ibid., [50].
347. Case Concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement, Febru-
ary 26, 2007, [344] citing Prosecutor v. Krstic (Case No. IT-98-33-T), Judgement, 2 August
2001.
348. Ibid., [580].
349. Schabas, Genocide in International Law, The Crime of Crimes, 268.
350. Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgement, 2 September 1998 [478].
351. Matthew Lippman, ‘The Drafting of the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide’, Boston University International Law Journal 3 (1985): 1 at 62.
352. K. Glaser and S. Possony, Victims of Politics: The State of Human Rights, (New York: Colum-
bia University Press, 1979), 37.
353. C.C. Tennant and M.E. Turpel, ‘A Case Study of Indigenous Peoples: Genocide, Ethnocide
and Self-Determination’, Nordic Journal of International Law 59– 60 (1990–1): 287.
354. G. Weiss, ‘The Tragedy of Ethnocide: A Reply to Hippler’, in Tribal Peoples and Development
Issues: A Global Overview, ed. J.H. Bodley (Mountain View, CA: Mayfield, 1988), 124–33.
355. Ben Whitaker, ‘Revised and Updated Report on the Question of the Prevention and Punish-
ment of the Crime of Genocide’, UN Doc. E/CN.4/Sub.2/1985/6, 17 [33].
356. UNESCO Latin-American Conference, Declaration of San Jose, December 11, 1981,
UNESCO Doc. FS 82/WF.32 (1982), extracted in James Crawford, The Rights of Peoples
(Oxford: Clarendon Press, 1988), 202 –3.
357. Aaron Schwabach, ‘Ecocide and Genocide in Iraq: International Law, the Marsh Arabs and
Environmental Damage in Non-International Armed Conflicts’, Colorado Journal of Inter-
national Environmental Law and Policy 15 (2004): 1.
358. Tennant and Turpel, ‘A Case Study of Indigenous Peoples: Genocide, Ethnocide and Self-
Determination’, 287.
359. Kupreskic and others, ICTY, TC, 14 January 2000 (case no. IT-95-16-T) [630–1].
360. Antonio Cassese, International Criminal Law, 2nd ed. (Oxford: Oxford University Press,
2008), 114.
361. Ibid., 115.
362. See generally, Ben Saul, ‘Climate Change, Conflict and Security: International Law Chal-
lenges’, Sydney Law School Research Paper No. 09/107, New Zealand Armed Forces Law
Review (2009).
363. Nick Mabey, ‘Delivering Climate Security: International Security Responses to a Climate
Changed World’, Whitehall Papers 69 (2007): 2.
364. Dan Smith and Janani Vivekananda, A Climate of Conflict: The Links between Climate
Change, Peace and War (London: International Alert, 2007), http://www.international-alert.
org/sites/default/files/publications/A_climate_of_conflict.pdf (accessed 30 October 2011), 3.
365. Saul, ‘Climate Change, Conflict and Security: International Law Challenges’, 13.
366. Preston, ‘Climate Change Litigation’, 169.
367. Havemann, ‘Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous
Peoples’ Rights’, 2.
368. Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’, 1925.
369. See generally Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Man-
chester University Press, 2002).
370. Mabo v. Queensland No.2 (1992) 175 CLR 1, per J. Brennan, at 76.
371. Reynolds estimated there were approximately 20,000 Aboriginal deaths due to British inva-
sion and occupation, Henry Reynolds, Frontier; Aborigines, Settlers and Land (Sydney:
Allen and Unwin, 1987), 29 –30; 53. Other accounts place the figures much higher, with
Mulvaney and White estimating more than 600,000 indigenous people had died as result of
British invasion and occupation; D.J. Mulvaney and J. Peter White, Australians to 1788
(Broadway, NSW: Fairfax, Syme and Weldon Associates, 1987).
372. Trevorrow v. State of South Australia (No.5) [2007] SASC 285, as per J. Gray, at 1006, 1007.
See generally, Human Rights and Equal Opportunity Commission, Bringing Them Home
(Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children from Their Families, Human Rights and Equal Opportunity Commission, 1997).
373. For a greater discussion on the deconstruction of the rationality, objectivity and neutrality of
the Western legal system and a critical examination of the law’s relationship with social hier-
archies of power and the legitimisation of political rule, as reflected in divisions of class, race,
and gender, see generally, Mark Tushnet, ‘Critical Legal Studies: A Political History’, Yale
Law Journal 100 (1991): 244.
374. For a greater discussion on critical race theory, see the writings of Derrick Bell, Race, Racism and
American Law, 6th edn (Little, Brown and Co, 2008), Mari Matsuda, ‘Beyond and not beyond,
black and white: deconstruction has a politics’, in Francisco Valdes et al. (eds) Crossroads,
Directions, and a New Critical Race Theory (Philadelphia: Temple University Press, 2002).
Richard Delgado, in Critical Race Theory: The Cutting Edge, 2nd edn (Philadelphia: Temple
University Press, 2000), as well as pioneers in the field, including W.E.B. DuBois and
Max Weber and Frantz Fanon. See generally, Kimberlé Crenshaw, ed., Critical Race Theory:
The Key Writings that Formed the Movement (New York: The New Press, 1996) and Richard
Delgado, Critical Race Theory: The Cutting Edge (Philadelphia, Temple University Press, 1995).
688 J. Williams
375. The Rio Declaration on Environment and Development, GA res. UN Doc. A/conf.151/26
(Vol. 1), (14 June 1992).
376. See generally, Mark A. Drumbl, ‘Waging War Against the World: The Need to Move from War
Crimes to Environmental Crimes’, in The Environmental Consequences of War, Legal, Econ-
omic and Scientific Perspectives, ed. Jay E. Austin and Carl E. Bruch (Cambridge: Cambridge
University Press, 2000), 630.
377. Garnaut, The Garnaut Climate Change Review Final Report.
Climate Change, 8–11.
380. See generally, Horne, ‘Is Litigation an Effective Weapon for Pacific Island Nations in the War
Against Climate Change’; Cordes-Holland, ‘The Sinking of the Strait: The Implications of
Climate Change for Torres Straight Islanders’ Human Rights Protected by the ICCPR’; Havemann,
‘Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous Peoples’ Rights’;
Posner, ‘Climate Change and International Human Rights Litigation: A Critical Appraisal’.
381. See generally, Drumbl, ‘Waging War Against the World: The Need to Move from War Crimes
to Environmental Crimes’, 630.

382. Havemann, ‘Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous
Peoples’ Rights’ 21.

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The International Journal of Human Rights

ISSN: 1364-2987 (Print) 1744-053X (Online) Journal homepage: http://www.tandfonline.com/loi/fjhr20

The impact of climate change on indigenous

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The impact of climate change on indigenous people – the implications

ISSN 1364-2987 print/ISSN 1744-053X online

Part 1: The impact of climate change on indigenous people

Australia and New Zealand

nent, which face the largest projected temperature increases.55

Central and South America

The Arctic and Antarctic

Substantial investments will be needed to adapt or relocate physical structures and

Combating climate change – the legal rights of indigenous people

Part 2: The national avenues

(ii) Public nuisance

The District Court dismissed the action on grounds of non-justiciability of policy

(iii) Tort – diversity action

able’ as required for a nuisance action, without additional standards.162

(vi) Constitutional law

Part 3: The regional avenues

Okyay v. Turkey, Application No. 36220/97, ECtHR 1997-II

(ii) The Inter-American Court for Human Rights (IACHR)

The matter of the Kichwa de Sarayaku Indigenous People v. Ecuador214

ment under the African Charter on Human and Peoples’ Rights.235

Part 4: The international avenues

Articles 1 – 6 recognise the Right to Nationality, Self-Determination, and Freedom from

Facility without having secured the meaningful participation or consent of Indigenous

(ii) International environmental law

(b) The Kyoto Protocol277

(iii) Public international law

(c) Trans-boundary harm

(iv) International criminal law

defendants Freeport-McMoran, Inc. (Freeport), an international mining corporation based

. . . a group is constituted by characteristics – often intangible – binding together a collection of

‘ecocide’ has emerged to describe cases of environmental destruction falling short of

(b) Crimes against humanity

(c) Climate change as a causal agent in conﬂict and insecurity

climate_change_information_kit/items/300.php (accessed 25 May 2010).

199. Ibid., [36].

232. Ibid., [9].

lian Indigenous Law Report 13, no. 1 (2009): 140–56.

21, 1965 (entered into force 4 January 1969).

Change Secretariat, 2006), http://unfccc.int/resource/docs/publications/handbook.pdf

to Environmental Crimes’, 630.

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