Right vs. Duty: What the Torres Strait and Bonaire Cases Reveal about Climate Adjudication

Climate change represents one of the most significant global challenges of our time, with far-reaching implications for environmental sustainability, economic development, public health, and social justice. As the impacts of climate change become increasingly evident, legal systems at the national, regional, and international levels are being called upon to develop effective frameworks for mitigation, adaptation, accountability, and resilience. Given the pivotal role that law can play in shaping climate governance, this blog series, edited by Dr Azadeh Chalabi, brings together academics, legal practitioners, and policymakers to contribute blog posts on the theme “Law and the Climate Crisis". Contributions to the series seek to foster critical engagement with the evolving relationship between law and climate change while exploring innovative legal responses to contemporary environmental challenges.

Asma Mahmud, University of Rajshahi and Senior Civil Judge in the Bangladesh Judicial Service

Keywords: Climate litigation; Human rights law; Tort law; Bonaire case; Torres Strait Islanders' case

A quiet but important shift is taking place in the world of climate law. For years, communities threatened by rising seas, extreme heat, and disappearing coastlines turned to tort law to seek protection. Litigants claimed courts hold governments responsible for failing a "duty of care"－ the legal obligation not to harm others through negligence. However, this approach is increasingly showing its limits. Therefore, a newer legal strategy, grounded in human rights, is now producing far more tangible results, and two island cases from 2025 and 2026 show exactly why this matters.

The Structural Hurdles of Tort Law: Pabai & Kabai v. Commonwealth

In July 2025, the Australian Federal Court delivered its highly anticipated judgment in Pabai & Kabai v. Commonwealth of Australia. Two Indigenous Torres Strait Islander men brought the action on behalf of their remote, low-lying communities. They argued that the Australian government breached its legal duty of care by failing to implement adequate emission-reduction policies, thereby imposing an existential threat on culturally irreplaceable islands facing rising sea levels.

While the court formally acknowledged the severe and ongoing reality of the climate threat to the Torres Strait, the case ultimately foundered on two distinct hurdles: strict legal causation and the political question doctrine.

Under tort law, a claimant must prove a direct causal link between the defendant’s specific omission and the localized harm suffered. In climate litigation, this threshold is difficult to satisfy. How can plaintiffs prove that a single government's climate policy, rather than the cumulative global emissions of the past 150 years, caused their island to flood?

Furthermore, the court also exercised judicial restraint regarding the separation of powers. It was also reluctant to characterise complex climate policy decisions as “negligent” of the government, and viewed emissions targets as matters for elected parliaments rather than for appointed judges. Consequently, the plaintiffs were left without a judicial remedy, which illustrates how tort law's strict requirements can deny relief despite clear climate risks.

The Rights Revolution: The Bonaire Breakthrough of 2026

Six months later, in January 2026, a different legal strategy produced a very different result. The Hague District Court ruled in favour of Greenpeace Netherlands and the residents of Bonaire, a small Caribbean island that is formally a municipality of the Netherlands. The plaintiffs argued that the Dutch government was violating their fundamental rights by failing to protect Bonaire from climate-related harm while simultaneously investing in coastal protection infrastructure, such as dikes, for the Dutch mainland.

The court accepted this argument, relying on  Articles 8 and 14 of the European Convention on Human Rights, and found that the Netherlands was discriminating against its own citizens in the Caribbean. Article 8 protects the right to private and family life, which European courts have interpreted as including the right to a safe living environment. Article 14 prohibits discrimination in the application of those rights. By protecting Amsterdam while leaving Bonaire exposed, the government was treating one group of its citizens differently from another without sufficient justification.

Crucially, a right-based claim does not require the plaintiffs to prove direct causal links as tort law does.  The judicial inquiry shifts from a backward-looking question ("Did your specific emissions cause my specific harm?") to a forward-looking, systemic obligation ("Are you violating your current constitutional duties by failing to protect your citizens equally?").

The court ordered the Dutch government to produce a concrete adaptation plan for Bonaire and to set binding emission reduction targets , all within 18 months, which was a historic decision, both for what it required and for how it achieved it.

The Separation of Powers Debate: The April 2026 Appeal

The Bonaire judgment, however, does not end here. On April 10, 2026, the Dutch government expressed its intention to appeal against the ruling. Government lawyers gave two main arguments. First, they said the 18-month deadline for making an adaptation plan is not realistic. Second, they argued that asking the government to set specific emission targets goes against the democratic rights of elected officials.

This tension lies at the heart of contemporary socio-legal debates. Governments rarely deny climate science; instead, they challenge the scope of judicial intervention by invoking the separation of powers,－ one of the state's strongest defenses against climate accountability.

Whereas the Bonaire case makes it complicated to use this as a defense. Here, the violation is framed as discrimination and unequal treatment of citizens based on geography, making it harder to argue that the matter belongs exclusively to politicians. Protecting minority rights and ensuring equal treatment under the law are core judicial duties in a constitutional democracy.

Why This Shift Matters

The shift from tort law to human rights framing is more than a change in legal strategy. It marks a fundamental transformation in climate adjudication. Tort law asks “whether a government acted negligently”, whereas human rights law asks “whether it failed to protect fundamental rights”.

This transformation enables courts to move beyond awarding compensation; instead, it requires governments to adopt adaptation measures, strengthen climate policies, and reduce emissions. It also reframes climate change from a policy debate into a question of equality and state accountability. Framing inadequate climate action as a human rights violation enables courts to provide more effective protection for climate-vulnerable communities.

Conclusion

The difference between the Torres Strait case and the Bonaire ruling illustrates how the choice of legal framework shapes access to climate justice. However, tort law is a valuable legal tool for holding corporations accountable; but its strict causation requirements make it less effective at challenging governmental inaction on climate change. The Bonaire case shows that human rights law offers a more direct route to the outcomes that affected communities actually need. As the Dutch appeal moves forward and similar cases are filed in other jurisdictions, the central question will remain whether courts are willing to hold governments to the standards that human rights law demands. 

Author bio:

Mst Asma Mahmud is a Senior Civil Judge in the Bangladesh Judicial Service and an MPhil Fellow at the Institute of Bangladesh Studies, University of Rajshahi, researching judicial activism in climate litigation. Her work on climate justice has been selected for presentation, among others, at the Universities of Oxford and Cambridge. A fellow of the CLIMPACT Project (Italy) and a member of BASAS and BWJA, she has forthcoming publications with Brill (the Asian Yearbook of Human Rights and Humanitarian Law) and major national law journals.