Australia is about to intervene in a legal case of global significance relating to the obligations of countries to protect the earth’s climate system. With Australia charging ahead with fossil fuel exports, Philip Dorling and Rex Patrick look at Attorney-General Mark Dreyfus’s forthcoming contribution to global climate (in)action.
An Advisory Opinion
A year ago, on March 23, 2023, the United Nations General Assembly adopted a resolution that requested the International Court of Justice (ICJ) to give an advisory opinion on the obligations of states to protect the global climate system from greenhouse gas emissions.
The ICJ was asked to answer two questions on 1) the legal obligations of states to protect the global climate system and environment and 2) the legal consequences when they have caused significant harm.
It was a rare moment of international unanimity and a triumph of environmental activism.
The resolution was adopted after a lengthy campaign initiated by university students in Vanuatu, a group now known as the Pacific Islands Students Fighting Climate Change. Greenpeace, the Climate Change Network, Amnesty International and NGOs joined the campaign and the Government of Vanuatu was persuaded to present a draft UN resolution and enlist other states to cosponsor it.
In the words of Greenpeace, the purpose of the campaign was “to get the highest court in the world … to give a determination on what duties countries have to protect human rights of current and future generations from the climate crisis; and what should happen under international; law when countries breach these legal duties. Wealthy nations, such as Australia, may become legally obliged to keep future generations safe from climate disaster.”
An ICJ advisory opinion isn’t binding on governments, but it’s likely to influence future climate change negotiations and could be cited as a persuasive precedent in legal proceedings around the world.
As Greenpeace argues, an ICJ opinion has the potential to “arm every lawyer around the world with a new sword to fight climate change by holding governments and big corporate polluters to account.”
March 22 is the deadline for governments to make submissions to the “Climate Change case”. At the moment Australia’s carefully drafted submission is secret.
Pacific solidarity
Primary responsibility within the Albanese Government for handling ICJ matters rests with Attorney-General Mark Dreyfus, supported by his Department’s Office of International Law. Foreign Minister Penny Wong and Climate Change and Energy Minister Chris Bowen, together with their respective departments, are also interested in the climate change advisory opinion.
The Office of International Law first briefed Dreyfus’s office on Vanuatu’s campaign for an ICJ advisory opinion in July 2022. A few months later, they pointed out that if the Court were asked for an opinion, “Australia will need to decide whether to intervene in the proceedings. This would be a matter for the Attorney-General, noting his responsibility for international litigation, in consultation with other relevant ministers”.
Diplomatic considerations shaped the Labor Government’s initial response to Vanuatu’s initiative.
Foreign Minister Wong was working to strengthen Australia’s ties with the South Pacific countries, seeking to counter growing Chinese activity and influence in a region traditionally regarded as ‘Australia’s backyard’.
This required a fulsome embrace of Pacific Island countries’ concerns about climate change and the growing risks of sea level rise and catastrophic weather events. In July 2022, Prime Minister Albanese joined other Pacific Island Forum (PIF) leaders in supporting Vanuatu’s campaign to get an ICJ opinion. Australia’s diplomats updated their talking points to declare, “We commend Vanuatu’s leadership on this issue.”
On 8 September 2022, Albanese reaffirmed Australia’s support to Vanuatu’s Prime Minister Bob Loughman. In February 2023, PIF leaders, including Albanese, formally endorsed Vanuatu’s draft General Assembly resolution. Australia agreed to be a co-sponsor.
When the resolution was adopted by the General Assembly a month later, Australia’s national statement proclaimed solidarity with Pacific Island countries: “Climate change is an urgent global challenge and the single greatest threat to the livelihoods, security and wellbeing of the Pacific. That is why it is so important that Pacific voices are at the centre of international climate discussions.”
Dreyfus gets drafting
The ICJ has moved slowly on the Climate Change case, and the deadline for written submissions has been extended.
Some delay was expected; as the Office of International Law told Dreyfus back in January 2023, “The Court currently has an unprecedented caseload and Vanuatu’s resolution does not currently request an urgent opinion”. Moreover, in recent months, the ICJ has been focussed on other high-profile matters, notably South Africa’s action concerning the application of the Genocide Convention to Israel’s actions in the Gaza Strip.
So, the Australian Government has had plenty of time to determine its position, and the Attorney-General’s Department has confirmed to MWM that they have prepared a submission for lodgement by the ICJ’s deadline next Friday.
The work has been largely done in-house, though it looks like some external advice has been obtained. Sydney-based barrister and international lawyer Callista Harris has picked up a $50,000 retainer to advise the Office of International Law on “climate change advisory opinions”.
The Attorney-General’s Department says the Government “looks forward to engaging constructively through all stages of the ICJ advisory opinion.”
However for the moment Australia’s submission remains secret. The Attorney-General’s Department doesn’t plan to take the initiative in releasing it, telling MWM that it will leave it to the ICJ’s “usual practice” of publishing submissions sometime after lodgement.
This is not about compensation
Although everything’s been kept under a tight lid so far, Attorney-General’s Department briefings and emails released under FOI provide some insight into the Government’s private concerns about the ICJ proceedings.
Media talking points prepared after the General Assembly’s resolution highlighted Australia’s support for our “Pacific family”, but quickly moved diminish the potential significance of an ICJ advisory opinion and defend Australia’s energy export industries.
It’s clear the Albanese Government has strong concerns about the questions relating to compensation and impacts on Australian energy exports. Possible media questions listed in the Attorney-General’s briefing pack include “Won’t Australia end up having to pay compensation to Pacific Island countries as a result of this advisory opinion?” and “What are the potential implications of an adverse ICJ advisory opinion on Australia’s resources and heavy industry sectors?”
The reference to an ‘adverse’ ICJ opinion is telling, and the Department’s proposed responses are blunt and designed to downplay potential implications.
“This is not about compensation”, the talking points say. “Advisory opinions are not legally binding and are designed to contribute to the clarification and development of international law, [and] not to resolve specific disputes or enforce remedies between States.”
The Department’s briefing also reveals Australia’s support for Vanuatu’s initiative was far from altruistic, noting that the General Assembly would have requested an advisory opinion “whether or not Australia co-sponsored the resolution”. Australia’s support was primarily designed to “put us in a better position to advocate for Australian interests”.
Australia’s involvement with the ICJ climate change case is intended to serve both the needs of the Government’s Pacific diplomacy and support Australia’s energy and resources interests, including “working with our traditional energy export partners”, such as Japan.
MWM has previously reported on the international drivers of Australia’s energy and climate change policies. So, it won’t be too surprising to find that the Government’s international legal strategy isn’t entirely in sync with its climate action rhetoric.
Climate Betrayal: how backroom deals with Japan locked Australia in for decades of gas
Keeping things narrow
Although Dreyfus’s submission is under wraps, an indication of its likely approach can be found in Australia’s little noticed submission in a parallel legal proceeding at the International Tribunal for the Law of the Sea.
The Commission of Small Island States on Climate Change and International Law has asked the Tribunal for an advisory opinion on the obligations of states under the United Nations Convention on the Law of the Sea (UNCLOS) to protect the marine environment from damage caused by greenhouse gas-generated climate change. The questions posed are narrower than those before the ICJ but have allowed the Australian Government to rehearse its arguments before the main event.
Australia’s submission to the Tribunal contains political “preliminary remarks” that assert Australia’s commitment to climate action and acknowledge the “longstanding leadership” of Pacific Island countries. After this, however, the Government’s primary concern is to minimise the scope of the proceedings to “the specific obligations of States Parties to UNCLOS, the law of the sea and nothing else.”
“The questions put to the Tribunal do not involve issues of liability, responsibility, or dispute resolution”, Australia’s submission states. “Nor do they invite the Tribunal to consider any legal consequences arising from the specific obligations of States. … Given the terms of the questions that have been put to the Tribunal, it has no jurisdiction to provide its opinion on issues of liability, responsibility, or dispute resolution.”
The primary thrust of Australia’s submission is to minimise the scope and significance of any advisory opinion, and especially keep out any talk of accountability, liability or compensation.
That’s likely to be reflected in Australia’s approach to the ICJ.
As Attorney-General in a government energetically approving new coal mines and promoting dodgy carbon-capture and storage projects to facilitate increased LNG sales to “traditional energy export partners”, Mark Dreyfus will be working on his client’s brief. It will be a harder row to hoe given the broader scope of the questions referred to the ICJ, but Dreyfus KC will no doubt do his best.
Last November Vanuatu’s Minister for Climate Change Ralph Regenvanu complained his country’s ability to adapt to climate change was being overtaken by “Australia’s hypocritical gas expansion plans.”
The Albanese Government’s climate hypocrisy is likely to again be on display, this time argued by our first law officer to the ICJ. The principle of “the polluter pays” is unlikely to appear in Australia’s carefully drafted submission.
Rex Patrick is a former Senator for South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency crusader - www.transparencywarrior.com.au.
Philip Dorling has some thirty years of experience of high-level political, public policy and media work, much of that at the Australian Parliament.
He has worked in the Australian political environment from most angles, in both the national and state levels of government including as a senior executive; as a senior policy adviser for the Federal Labor Opposition and for cross bench Senators; and as an award-winning journalist in the Federal Parliamentary Press Gallery.