Climate change human rights violations found against Australia in Torres Strait Islanders case

17 October 2022 by

On 22 September 2022, the UN Human Rights Committee found that the Australian Government had violated the human rights of various Torres Strait islanders through climate change inaction.

The rights in issue arose under the International Covenant of Civil and Political Rights of 1966, and in particular the right to life (Article 6), the right to be free from arbitrary interference with privacy, family and home (Article 17), the rights of the child (Article 24), and the right of indigenous minorities to enjoy their culture – all of which rights should be respected and ensured to all individuals (Article 2).

The Torres Strait islands are low-lying islands between Australia and Papua New Guinea. The complaints of the islanders before the Committee will be familiar from those made by other Pacific island communities. Their islands are eroding, are increasingly subject to high tides and regular flooding (causing salt infiltration into land used for agriculture). Rising sea temperatures cause coral bleaching and ocean acidification, with impact on the crayfish which are a major source of food and income for the islanders. Eight islanders, on behalf of themselves and five of their children brought these proceedings or “communications” before the Committee.

The Committee sits in Geneva. Matters under the ICCPR only come before the Committee if the relevant party has signed up to an Optional Protocol conferring adjudication powers on it, when individuals have exhausted domestic remedies and have been through the written procedure under the Protocol. The Committee shall consist of 18 members.

The violations found

The grounds of complaint were, in short, that Australia had failed to implement a programme of adaptation to ensure the long-term habitability of the islands, and also had failed to mitigate the effect of climate change because of its long-standing policies favouring fossil fuels.

The Committee accepted the islanders’ case on adaptation. Australia had failed to construct new sea walls for many years, and only now was starting to do so. This delay had impacted on the resources available to the islanders, their villages and burial grounds. The Committee held that, where climate change has caused environmental degradation on traditional lands used by subsistence peoples, and this has had

direct repercussions on the right to occupy one’s home, and the adverse consequences are serious because of their intensity or duration and the physical or mental harm they cause, then the degradation of the environment may adversely affect the well being of individuals and constitute foreseeable and serious violations of private and family life and the home…..by failing to discharge its positive obligation to implement adequate adaptation measures to protect the [islanders’] home, private life, [Australia] violated the [islanders’] rights under article 17 of the Covenant: [8.12]

The Committee made another finding of violation, in respect of Article 27, applicable to minority indigenous groups. Much of the language of the Article 17 finding will be familiar to parallel findings of violation of Article 8 of the ECHR (private and family life). Article 27 is different. It is applicable only to “ethnic, religious or linguistic minorities”, they “shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practise their own religion or use their own language.” Strasbourg would probably fashion a remedy for such violations via a combination of ECHR Articles 8, 9 (freedom of thought, conscience and religion), 10 (freedom of speech), 11 (freedom of assembly) and 14 (prohibition of discrimination).

The Committee made in effect the same findings of violation in respect of the delay in adaptation under Article 27: Australia’s failure “to protect the [islanders’] collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources.” [8.14]

As to remedies, Australia was ordered to provide adequate compensation for past harm, to engage “in meaningful consultations…in order to conduct needs assessments”; and continue its implementation of measures necessary to secure the communities’ continued safe existence on their islands, and to monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as possible. Australia was also ordered to report to the Committee within 180 days as to the measures it had taken.

Violations not found

In the light of the above, the Committee did not “deem it necessary” to examine the claims under Article 24 concerning the rights of the child.

Of much greater importance, however, was the Committee’s finding that there was no violation under Article 6, the right to life. Under UNHRC law, the right to life did include the right to enjoy it with dignity , and states’s duties to respect the right to life extended to “reasonably foreseeable threats and life-threatening situations that can result in loss of life”……”environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life”: [8.3].

But, said the Committee, the islanders

had not indicated that they have faced or presently face adverse impacts to their own health or a reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could threaten their right to life, including their right to a life with dignity.

The Committee said that the claims under Article 6 “mainly related to their ability to maintain their culture, which falls under the scope of” Article 27.

In the light of all this, you may be wondering how one can square the Article 17 and 27 findings which I have set out above, with these negative findings in the context of Article 6. You would not be alone.

The opinions of five of the 18 members of the Committee (in three separate opinions) were that there was a violation of Article 6, namely in (1) Duncan Laki Muhumuza, (2) Arif Bulkan, Marcia V.J. Kran, Vasilka Sancin and (3) Carlos Gomez Martinez – according to my unofficial translation from the Spanish in the last case.

The most radical of these views is found in Duncan Laki Muhumuza’s opinion: in addition to relying on the delays in adaptation, Australia had not taken any measures to reduce greenhouse gas emissions and cease the promotion of fossil fuel extraction and use – i.e. it has failed to mitigate climate change. (This is a theme picked up in the concurring opinion of Gentian Zyberi at [6], though he made no specific finding of breach of Article 6). Interestingly, Muhumuza drew support in his opinion from the Urgenda case in the Dutch Supreme Court – judgment here and comment here.

The other partly dissenting opinion of Arif Bulkan et al convincingly makes the point that you cannot rebut a claim under Article 6 by saying that the specific claims more naturally fall under Article 27. The damage which had already happened by the time of the “communication” was significant enough to amount to a violation of Article 6.

As will be seen, there is a certain amount of criticism within the members of the Committee who wrote separate opinions that the conclusions on the different Articles don’t fit well with each other. But I think the key to the majority Committee reasoning is reasonably clear. Past losses and impacts could not be defended, and therefore the Article 17 claim ran. But the future is a bit different. Australia might get its act together, within the 10 to 15 year period before which islands might not become habitable, on various infrastructure measures which might protect the islanders and “where necessary, relocate the alleged victims”. In which case “the Committee is not in a position to conclude that the adaptation measures taken by [Australia] would be insufficient so as to represent a direct threat to the [islanders’] right to life with dignity”.

Conclusion

The headline to take away from this is a finding by an international tribunal that a state is in violation of people’s human rights in respect of its dilatory response to the threats posed by climate change. The differences between the ICCPR and the ECHR may not be all that profound though whether the ECtHR will respond in a similar way remains to be seen. But climate change litigation is certainly on the move. For a resume of things last autumn, see Merrow Golden’s excellent post here. Two cases picked up in this review have been referred to the Grand Chamber of the ECtHR, namely the Union of Swiss Senior Women for Climate Protection v. Switzerland case, referred in April 2022, and Agostinho v. Portugal et al (heatwaves/wildfires) case, referred in June 2022.

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