World Court climate decision lights match under Australia's fossil fuel industry

Australia Broadcast Center

a day ago

A landmark outcome from the world's highest court this week has put major fossil fuel countries like Australia on notice, declaring they could be liable for reparations.
The International Court of Justice (ICJ) handed down its advisory opinion this week, outlining that nations have an obligation to prevent climate change and listing potential legal consequences for continuing to make the crisis worse.
It's been celebrated around the world as a historic turning point for the climate movement. It's also expected to unleash a new wave of climate litigation.
Australia, one of the world's biggest fossil fuel exporters, is likely to face new legal scrutiny.
"Under international law, it's huge for Australia. It's going to open us up to a lot more liability," said climate law specialist at the University of Melbourne's law school, Liz Hicks.
"There could be claims for reparations brought against Australia. I think this is something that the government hasn't been taking seriously until now."
The ICJ was tasked with determining what obligations countries have to protect the climate system for current and future generations, and what the consequences are of failing to do so.
In a unanimous finding, the court determined that nations have an obligation under international law to prevent climate change — and that they may be liable to pay compensation if they fail to do so.
But the 500-page opinion goes much further than that; it has been described as a blueprint for climate justice and a reckoning for those countries perpetuating the destabilisation of the planet.
"The court has really met the moment in bringing all of those legal obligations and interpreting them in the climate reality, and the urgency of this kind of existential crisis for the entire world," Retta Berryman, climate lead and lawyer for Environmental Justice Australia (EJA), said.
The ICJ's decision isn't binding for Australian courts, but its advice is considered highly influential and will inform legal arguments in cases back home.
Under the Paris Agreement, the legal framework for climate action over the past decade, countries set their own targets for how they will reduce their domestic greenhouse gas emissions.
Domestic. That's the critical word here.
By only counting emissions released at home, fossil fuel exporters like Australia could brag about cutting down greenhouse gases whilst continuing to sell coal, oil and gas to international buyers, obligation-free.
"What states like Australia — and many, many states — were arguing, was that the Paris Agreement was exhaustive of all our obligations," Melbourne Law School's Dr Hicks explained.
"Our exports, the big contribution that we make to climate harms, fell outside of the Paris Agreement."
The ICJ judges rejected that outright.
They declared that supporting fossil fuels — by the production, the granting of fossil fuel exploration licences, and fossil fuel subsidies — constitutes an internationally wrongful act.
For Australia, the potential ramifications can't be overstated.
Australia produces about 1.1 per cent of global emissions. However, Australia is the world's largest coal exporter and a top gas exporter, and a UNSW study has concluded Australia is second globally for emissions from fossil fuel exports.
When exports are taken into account, Australia makes up about 4.5 per cent of global emissions, the report found.
Ella Vines, a climate law researcher at Monash University, said the ICJ ruling would put those emissions into sharper focus.
"It's really significant that we can say that Australia should be responsible for its fossil fuel production even though it's consumed overseas.
"A lot of the loopholes that Australia has tended to use to get out of liability are starting to get smaller and smaller," Dr Hicks said.
The court took this a step further, stating that states are also responsible for regulating fossil fuel companies operating within their borders, which again exposes Australia to legal liability for its booming fossil fuel industry.
In some instances, Australian taxpayers are already forking out for the rehabilitation costs once companies have finished digging up and selling their products. Now, they could also be paying for the climate pollution from that coal and gas.
"The ICJ observed that a state's failure to regulate the activities of private actors may amount to a breach of that state's duty to exercise regulatory due diligence," Dr Vines said.
The ICJ also shot down another argument used frequently in Australian climate court cases.
It goes that no individual project — a gas plant or a coal mine — is responsible for climate change, as it is a cumulative problem, so there is no direct link between its emissions and climate harm.
It was an argument used in court last year for the Living Wonders case, which was run by Environmental Justice Australia (EJA).
"The judges of the ICJ, after hearing all of that evidence and reading all of the submissions, have confirmed that it is scientifically possible to determine a country's contribution to climate change," said EJA's Retta Berryman.
"They've said they acknowledge that it's complex, but that it's not impossible. And notwithstanding the fact that climate change is caused by cumulative emissions, it's scientifically possible to determine each state's contribution."
International law is not a perfect vehicle for justice, and a longstanding criticism has been its failure to be enforced.
But Dr Hicks said that — again — the ICJ addressed this squarely by stating clearly that countries could be liable for penalties, including reparations, if they commit these "wrongful acts" of climate harm.
"If there is no clear consequence to breaching [human rights], we are not as good at paying attention. Once you're talking about reparations being a possibility, or other forms of liability and consequences being in play, that is also going to change."
The ICJ was asked to consider this issue by Vanuatu and other low-lying island states, which are suffering the consequences and costs of climate change, for which they bear little responsibility.
On Friday, Vanuatu's special envoy on climate did not rule out launching litigation against large polluting countries like Australia. Any theoretical case could potentially be heard in the ICJ's dispute court.
A spokesperson for the Australian government told the ABC it is carefully considering the court's opinion.
"The unprecedented participation by other countries in the ICJ proceedings reflects that we're not alone in recognising the challenges and opportunities of responding to climate change.
"…we remain steadfast in our commitment to working together with the Pacific to strengthen global climate action."
International law may not be strictly enforceable, but ignoring it would also affect Australia's international, diplomatic and moral standing, if there were any case.
One example of an international legal fight in the ICJ is Australia's case against Japan over its whaling program in Antarctica. Australia successfully argued that Japan was breaching international law, and Japan was ordered to stop the program.
"I think it puts the Australian government on notice that the actions that it's taking — particularly connected with exports and downstream emissions — are opening it and future Australian publics and taxpayers up to liability," Dr Hicks said.
This legal opinion comes as Australia finalises its 2035 emissions targets, which the ICJ opinion stressed must be its "highest possible ambition".
EJA's Ms Berryman believes this legal advice sets out a road map for the federal government's response to climate change.
"I think starting with setting a really ambitious target and then working towards a rapid phase-out of fossil fuels is really the only way to achieve compliance with the standards that the ICJ has set for the countries."
Failure to do so could leave all Australians on the hook for the mounting costs of catastrophic climate change.